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COPYRIGHT DEPOSIT 









ROGER BROOKE TANEY 




By William E. Rineharl Washington Place, Baltimore 

STATUE OF ROGER BROOKE TANEY 



Life of 

Roger Brooke Taney 

Chief Justice of the 
United States Supreme Court 



BY 
BERNARD C. STEINER 




BALTIMORE 

WILLIAMS & WILKINS COMPANY 

1922 






Copyright 1922 
BERNARD C. STEINER 

Made in United States of America 

All rights reserved, including that of translation 

into foreign languages, including 

the Scandinavian 



COMPOSED AND PRINTED AT THE 

WAVERLY PRESS 

By the Williams & Wilktns Company 

Baltimore, Md., U. S. A. 



m 131922 



§)CI.A661635 



PREFACE 

The presence of four men in Maryland secured in 
that State the success of the sympathizers with the 
Union in 1861. Three of these men were politicians 
and lawyers: John Pendleton Kennedy, Reverdy John- 
son, and Henry Winter Davis. The fourth was a 
jurist — Roger Brooke Taney. The life of Kennedy 
was written by Tuckerman and needs not to be written 
again. Those of Johnson and Davis, it has been the 
privilege of the author of this work to write. The 
life of Taney has been written by Samuel Tyler and 
was published in 1872. That portly volume is inval- 
uable to every student of Taney's life, both because 
the author was a friend of the Chief Justice and gathered 
information which would otherwise have been lost and 
because the book contains a very valuable autobiog- 
raphy of Taney's early years. Yet the book was 
styled by a contemporary reviewer, as a "panegyric 
rather than a biography," was written uncritically, 
is nearly fifty years old, did not include the information 
now to be gained from Taney's correspondence with 
President Jackson, and involved no full discussion of 
the subject's place as a jurist. For these reasons, it 
seemed worth while to have this book written — the 
life of a Border State Federalist, written by one who 
was brought up in the town where Taney practiced 
law for nearly a quarter of a century, and who has 
lived for the whole of his adult life in the city which was 
Taney's residence during his judicial career. I have 
tried to write a biography, not a history of the times, 
and to portray the venerable Chief Justice as a con- 
sistent character, limited by his environment, compre- 



PREFACE 



hensible only when it is comprehended, and yet, be- 
cause of the conjunctions of his nature and his oppor- 
tunities, a notable figure in United States history, a 
high-minded, sincere, devout man. 

Miss Eleanor M. Johnson, of Frederick, has kindly 
permitted the reproduction of the silhouette of Taney, 
made while he resided in that town, and J. Henry Baker, 
Esq., of Baltimore, has generously loaned the cut of the 
painting of Taney which belongs to Dickinson College. 
The author's thanks are due to John E. Semmes, Esq., 
and to Lawrence C. Wroth for courtesies shown during 
the preparation of the work. 

During the printing of the book, "Judge Taney" has 
become a household word in our family. Should a 
formal dedication have seemed wise, it would have been 
made to the memory of the conversations held, concern- 
ing the preparation of this book, with my wife and sons. 



CONTENTS 

Chapter I— Early Life and Dickinson College (1777-1796) . . 7 

Chapter II— Law Student at Annapolis (1796-1798) 21 

Chapter III — Lawyer in Calvert County and Member of 

the House of Delegates (1798-1801) 29 

Chapter IV— Law Practice at Frederick (1801-1823) 39 

Chapter V— Law Practice at Baltimore (1823-1831) 81 

Chapter VI — Attorney General of the United States (1831- 

1833) 100 

Chapter VII— Secretary of the United States Treasury 

(1833-1834) 144 

Chapter VIII— Resumption of Law Practice (1834-1836) ... 166 
Chapter LX — Chief Justice of the Supreme Court (1836- 

1846) 187 

Chapter X — Friendship with Jackson and Private Life 

(1836-1846) 232 

Chapter XI— The Period of the "Genesee Chief" (1846-1856) 267 

Chapter XII— The Dred Scott Case (1856-1857) 326 

Chapter XIII— The End of the Era (1856-1861) 419 

Chapter XIV— Circuit Court Decisions (1836-1863) 451 

Chapter XV— The Civil War (1861-1864) 488 

Chapter XVI— After Taney's Death 522 

Index ^43 

Illustrations 

Rinehart's Statue of Taney Frontispiece 

Silhouette of Taney at Frederick Opposite page 39 

Portrait of Taney by Farley Opposite page 419 



Cicero, "De Senectute," Cap. 3, 8: "Cato, Est istud quidem, Laeli, aliquid, 
sed nequaquam in isto sunt omnia. Ut Themistocles fertur Seriphio cuidam in 
mrgio respondisse, cum ille dixisset non eum sua, sed patriae gloria splendorem 
adsecutum. 'Nee hercule,' inquit, 'si ego Seriphius essem, nee tu si Athen- 
censis, clarus unquam fuisses.' " 

James Breck Perkins, in the preface to his "France under Richelieu and 
Mazann," wrote: "Of the pleasure of being brought into close contact with the 
great figures of other times, of reading their thoughts and their purposes, of 
living for a while in intimate relations with a generation that has long passed 
away, sympathizing, as a contemporary might, with their adversity and their 
suffering, rejoicing in what gratified national pride or increased individual 
comfort." 

W. Alexander, "Epistles of St. John" (Expositor's Bible) p. 85: "A great life, 
even as the world counts greatness, is an organic whole with an underlying 
vitalising idea; which must be construed as such, and cannot be adequately 
rendered by a mere narration of facts. Without this unifying principle, the 
facts will be not only incoherent, but inconsistent. There must be a point of 
viewfrom which we can embrace the life as one. The great test here, as in 
act, is the formation of a living, consistent, unmutilated whole." 

W. H. Dunn, "English Biography," p. XIV: A true biography is the narra- 
tive, from birth to death, of one man's life in its outward manifestations and 
inward workings. The aims of such a true biography, in its simplest form, 
would, therefore, include a record of facts, combined with some portrayal of 
character. 

/. Dryden, Works (1821, Constable), XVII, 56: "As the sunbeams, united in 
a burning-glass to a point, have greater force, than when they are darted from 
plain superficies, so the virtues and actions of men, drawn together into a 
single story, strike upon our minds a stronger alnd more lively impression than 
the scattered relations of many men and many actions, and, by the same 
means that they give up pleasure, they afford us profit too." 

_ Leslie Stephen, "Encyclopedia Britannica": "History is, of course, related to 
biography, inasmuch as most events are connected with some particular person 

■ _ . . . and, on the other hand, every individual life is, to some extent, 
an indication of the historical conditions of the time." 

W. R. Thayer in "North American Review," June, 1920: "The master crea- 
tions of fiction sprung from the human brain; the subjects of biography are 
the very creatures of God himself: the realities of God must forever transcend 
the fictions of man." 



CHAPTER I 

Early Life (1777-1796) 

The broad Patuxent River, one of the tidal estuaries 
opening into the Chesapeake Bay, divides the southern 
portions of the Western Shore of Maryland. On the 
banks of this river colonists settled, who came from 
England to Maryland during the seventeenth century, 
and there they cultivated tobacco and raised some 
grain. St. Mary's County occupied the lower western 
and southern bank of this river. It was the first set- 
tled portion of the Province, and has always been in- 
habited by a people whose religion is predominantly 
Roman Catholic. The rolling, broken country to the 
north and east of the Patuxent River, forming a penin- 
sula between River and Bay, was set off as Calvert 
County, within a generation of the settlement of the 
Province. This tract of land, named for the family 
of the Lord Proprietary, was inhabited by planters, 
whose holdings of land stretched along the water, which 
was the chief highway of the County, until a State 
Road was carried through it about 1914. The people 
were for the most part Protestants, but some families 
adhered to the Roman Catholic Church, and among these 
adherents was Michael Taney. His ancestors had 
come to the Province in the seventeenth century, and, 
for several generations, they had owned and cultivated 
a plantation on the Patuxent River at the mouth of 
Battle Creek. Roman Catholics were prohibited from 
teaching school in the Province during the latter part 
of the Colonial Period, and the planters of that faith, 
who could afford to do so, sent their children to France 

7 



8 ROGER BROOKE TANEY 

to be educated. The Taneys lived comfortably on their 
"good landed estate," cultivated by the slaves they 
owned, and so Michael Taney was sent to the Jesuit 
College at St. Omer's and completed his education at 
Bruges. He returned to America, took possession of 
his estate at his father's death and married, about 
1770, Monica Brooke, whose father's plantation was 
directly opposite the Taneys' on Battle Creek. The 
Brooke family had been prominent in the Province, 
from the time that Robert Brooke came in 1650 and 
"seated himself" on the Patuxent River, about twenty 
miles from the Bay. He was an Anglican, but some 
of his descendants became members of the Church of 
Rome, among them the branch to which Monica Brooke 
belonged. Robert Brooke's second son was named 
Roger and the latter had a son and grandson who bore 
the same name. The last of these was Monica Brooke's 
father. She was born in 1752 and was eighteen years 
of age when she was married. 1 The last Roger Brooke 
married twice, Monica being his seventh child, and the 
second one of his second wife, Elizabeth Boarman. 
Michael and Monica Taney had seven children, four sons 
and three daughters, of whom Roger Brooke Taney, 
born on the Battle Creek Plantation on March 17, 
1777, and named for his maternal grandfather, was the 
third child and second son. 

Of Michael Taney, we know nothing, except what 
Roger Taney's autobiography tells us of him and the 
tradition which states that he was a hot-tempered 
man, and, once in a quarrel, stabbed a man, who died 

1 For the Brooke family see Tyler "Life of Taney," pp. 21-26 and Dr. Chris- 
topher Johnston's article in 1 Md. Hist. Mag., 287. Tyler (ix) thought the 
name Taney was probably of Irish extraction. Taneytown in Carroll County, 
Md., is named for Raphael Taney, a relative of Roger B. Taney (See 2 Md. 
Hist. Mag. 74, article by G. S. Tawney). 



ROGER BROOKE TANEY 9 

from the wound. 2 He "lived to an advanced age, " 3 and 
made Roger Taney executor of his estate, which was a 
complicated one and was not finally settled until after 
the executor had become Chief Justice. The auto- 
biography speaks with respect of the father, and shows 
that the two men were fond of one another. 4 We are 
told by the son that Michael Taney had "no taste for 
teaching and did not often assist" his children in their 
lessons, becoming "impatient," if they "did not learn 
as fast as he thought they should." "He was fond of 
reading and .... had read every work he could 
obtain in the then scant libraries of the country." 
A typical country gentleman, he "took pleasure in 
teaching his sons how to ride and swim and to fish and 
to row and sail in summer and to skate and to shoot 
ducks and geese in the winter." As a result of this 
instruction, Roger Taney wrote that he could not 
"remember when I could not ride on horseback and but 
faintly remember my first effort at swimming." 5 

Upon his mother, Taney lavished his affections. 
Most women in Maryland at that time, received a 
"very limited amount of human learning." "But," 
he wrote forty years after her death, "her judgment 
was sound and she had knowledge and qualities far 
higher and better than mere human learning can give. 
She was pious, gentle and affectionate, retiring and 
gentle in her tastes. I never in my life heard her say 
an angry or unkind word to any of her children or serv- 
ants, nor speak ill of any one. When any of us. or 
the servants about the house who were under her im- 

2 See Hungerford's "Old Plantation" p. 300 and G. A. Townsend's story 
refuted in 67 Catholic World for June 1898, p. 396. 

3 Tyler, p. 27. 

4 Vide Tyler, pp. 36, 80, 94. 
6 Tyler, pp. 27, 28. 



10 ROGER BROOKE TANEY 

mediate control (all of whom were slaves), committed 
a fault, her reproof was gentle and affectionate. If 
any of the plantation-servants committed faults and 
were about to be punished, they came to her to inter- 
cede for them ; and she never failed to use her influence 
in their behalf, nor did she ever hear of a case of dis- 
tress within her reach that she did not endeavor to 
relieve it. I remember and feel the effect of her teach- 
ing to this hour." 6 

When the British fleet entered the Patuxent River 
in the expedition against Washington, it anchored 
opposite Michael Taney's house, where the stream was 
two miles broad. 7 About that time, Mrs. Taney left 
her home and took refuge with her son, Roger, who was 
then living in Frederick. A few months afterward, 
before the end of 1814, she died and was buried in the 
little graveyard of the Jesuit Novitiate in Frederick. 
When Taney removed from Frederick, he made an 
arrangement with a friend to have himself buried be- 
side her, whenever and wherever he might die. 8 Fifty 
years after her death and when his own death was only 
a few months distant, he wrote to thank one who had 
removed the "moss and rubbish" from the flat stone 
placed over her grave. 9 In that letter, he referred to 
his expectation that he would soon "be laid by the side 
of my mother." This direction was carried out by 
Taney's family, and, when the graveyard was given up, 
at the time the Novitiate was taken from Frederick 
about the year 1900, the two bodies were removed to the 
Roman Catholic cemetery of the town, where they 
now lie side by side. 

6 Tyler, p. 26. 

7 Tyler, p. 20. 

s Tyler, p. 143. 

9 May 6, 1S64, to H. McAleer. Letter dated Washington. Tyler, p. 4S4. 



ROGER BROOKE TANEY 11 

The planters of Calvert County lived far from towns, 
and the Taney plantation was in a "retired situation." 
The Maryland Constitution of 1776 had placed all 
Christians upon "an equal footing," as far as education 
went ; but it was difficult to find a school near the Taneys' 
plantation. 10 'The families which we visited by land, " 
Taney wrote, "were several miles distant from us, and 
our chief social intercourse was in boats across the river 
or creek, with families who resided on the opposite 
shores." 11 At eight years of age, Roger Taney began 
going to the only school within ten miles — one "dis- 
tant three miles, kept in a log cabin by a well disposed, 
but ignorant, old man, who professed to teach reading, 
writing, and arithmetic as far as the rule of three." 
The teacher was not religious, but was "a kind man, 
upright and conscientious." The "only school books 
were Dilworth's spelling book and the Bible." The 
latter volume was probably in the King James version, 
as the teacher professed to belong to the Episcopal 
Church, and "was used merely as a book to teach us 
how to spell words and pronounce them." The teacher 
eked out his living by cultivating a "few acres of poor 
land." To and from this school, Roger Taney, with 
his elder brother and sister, "walked every day, when 
the weather was good, and, when it was unfavorable, 
we stayed at home. Our attendance, therefore, was 
not very regular." About thirty scholars generally 
attended this school — "which was a large number, 
considering its retired situation and the sparse popu- 
lation about it." 12 A "barring out" of the master 
was the "only exciting event, " which Taney remembered 
of his stay there. 

10 Tyler, p. 27. 

11 Tyler, p. 20. 

12 Tyler, p. 27-29. 



12 ROGER BROOKE TANEY 

When the two Taney boys had learned what this 
teacher could instruct them, they were sent to board 
with a Scotchman, named Hunter, who kept a grammar 
school in Calvert County, ten miles from the Taney 
plantation. "He had the reputation of being an ac- 
complished classical scholar," and taught about twenty 
pupils. Roger Taney began to study Latin with him, 
but, after two or three months, the teacher became in- 
sane and the school 13 was broken up. Michael Taney 
then determined to employ a private tutor. This was 
a common practice in that time and place. It gave 
almost the only opportunity to have the daughters 
educated. "He planned to adopt the English notion of 
"perpetuating the family estate in the eldest son" and 
to give him the "landed estate," while providing the 
younger sons "with a liberal education and the means 
of studying a profession," upon which they must sup- 
port themselves. By this plan, which, as Taney wrote, 
"proved an unfortunate one for my elder brother," 
Michael Taney "designed to give him nothing more 
than a good English education that would fit him for 
the business of a landed gentleman, cultivating his own 
estate, and qualify him to associate upon equal terms, 
as to education and information, with the gentlemen 
of the county." All this would be accomplished by a 
private tutor. 

•"Roger Taney was about twelve years of age when 
the first tutor was engaged — "an Irishman, who died 
of consumption within a year." Taney believed that 
this tutor was "a ripe scholar." He was certainly an 
amiable and accomplished man in his disposition and 
manners. "The second tutor, whose term of service 
was a year, was a native of Maryland." He was a 

13 Tyler, p. 33. 



ROGER BROOKE TANEY 13 

good English scholar, but his "knowledge of Latin was 
very slender" and he "was altogether ignorant of 
Greek. " The third and last tutor was David English, a 
graduate of Princeton, who afterwards edited a news- 
paper in Georgetown, D. C., and "was for many years 
employed as an officer in one of the banks of that place. " 
He was "an accomplished scholar and seemed to take 
pleasure in teaching us and was altogether an agreeable 
inmate in the family." In 1854, Taney recalled with 
pleasure, English's "unwearied attention and kind- 
ness" and the "interest he took in my fortunes, as 
long as he lived." \ 

After a year's instruction, English advised Michael 
Taney to send Roger at once to college, and encouraged 
him to do so by the very favorable accounts he gave 
of "the boy's progress." 14 Dickinson College, at Car- 
lisle, Pennsylvania, was selected, because two young 
men, somewhat older than Roger Taney, with whose 
families Michael Taney was "intimately acquainted," 
were already students there and "gave very favorable 
accounts of the institution." 15 Thither, accordingly, 
Roger Taney went, just after he was fifteen years old, 
at the close of the spring vacation in 1792, in company 
with one of the students just referred to. * 

"It was no small undertaking, however, in that day, 
to get from the lower part of Calvert County to Car- 
lisle. We embarked," says Taney, "on board one of 
the schooners employed in transporting produce and 
goods between the Patuxent River and Baltimore, and, 
owing to unfavorable winds, it was a week before we 
reached our port of destination; and, as there was no 
stage or any other public conveyance between Balti- 

14 Tyler, pp. 33-35. 
16 Tyler, p. 36. 



14 ROGER BROOKE TANEY 

more and Carlisle, we were obliged to stay at an inn, 
until we could find a wagon returning to Carlisle, and 
not too heavily laden to take our trunks and allow us 
occasionally to ride in it." The whole journey took 
about a fortnight. "And what made the journey more 
unpleasant," Taney continued, "was that we were 
obliged to take, in specie, money enough to pay our 
expenses until the next vacation. The money was 
necessarily placed in our trunks, and they were very 
much exposed in an open wagon in a public wagon- 
yard, while the wagoner and ourselves were somewhere 
else." 16 

Taney found his college life "taken altogether, a 
pleasant one." Dickinson College was not yet ten 
years old. The second institution of collegiate grade 
in the State of Pennsylvania, it had been incorporated 
in 1783 and was opened shortly afterwards with the 
Rev. Charles Nisbet, D.D., of Montrose, Scotland, as 
principal, an office he continued to hold until his death 
in 1804. He was a Presbyterian clergyman, and while 
the new college was not exclusively denominational, 
its tone was distinctively Presbyterian, until the insti- 
tution was taken over by the Methodists in 1833. Dr. 
Nisbet was not only head of the College, but also occu- 
pied the pulpit of the Presbyterian Church at Carlisle, 
alternately with his colleague in the faculty, the Rev. 
Robert Davidson, D.D., a graduate of the University 
of Pennsylvania. 17 The college exercises were held in 

16 Tyler, p. 37. 

17 See the "Sketch of Dickinson College" by Professor Charles F. Himes in 
Haskins and Hull's "History of Higher Education in Pennsylvania," Con- 
tributions to American Educational History, edited by Herbert B. Adams, No. 
33. Tyler (p. 99) had access to the notes which Taney took of Dr. Nisbet's 
lectures, and found them "very full and very accurate," in "bound manuscript 
volumes." "The notes on moral philosophy cover 248 closely written pages. 



ROGER BROOKE TANEY 15 

a two story building, which Taney described 18 as a 
"small and shabby one fronting on a dirty alley, but 
with a large open lot in the rear, where we often amused 
ourselves playing bandy." There was no dormitory, 
and the students boarded with families in the town. 
Taney's first boarding place is unknown; but, after 
six months, he resided in the house of James McCor- 
mick, the Professor of Mathematics. There were 
usually eight students boarding there, and Taney 
remembered that "Mr. McCormick and his wife were 
as kind to us, as if they had been our parents." 

Taney's relations with Dr. Nisbet were very pleasant. 
A letter from Michael Taney to Dr. Nisbet asked him 
"to stand in the place of a guardian" to the boy, on 
account of his "youth and distance from home and 
friends and the retirement and seclusion" in which he 
"had so far been educated." 19 Dr. Nisbet was cordial 
and invited Taney to visit him often. The young 
student spent "many a pleasant evening" at his house, 
"enjoying and profiting by the elder man's conversa- 
tion, which was cheerful and animated, full of anecdote 
and of classical allusions and seasoned with lively and 
playful wit." Mrs. Nisbet also took an interest in the 
youth and "never failed, when she had an opportunity, 
to give" him "a regular course of motherly instruction 
and advice," delivered in a "dialect so broadly Scotch" 
that "half of what she said" failed to be understood. 
Taney had a great respect for Dr. Nisbet as a teacher, 
but thought less highly of Dr. Davidson. 20 Taney and 

Those on the dead languages and classical education, and the character of the 
principal classic authors, beginning with Homer and ending with Seneca, cover 
112 pages. Those on criticism cover 296 pages, and those on logic, 178 pages." 
I have not found these volumes. 

18 Tyler, p. 38. 

19 Tyler, p. 38. 

20 Tyler, p. 42. 



16 ROGER BROOKE TANEY 

all the students were much attached to a fourth member 
of the faculty, Charles Huston, who taught Latin and 
Greek, and found him an accomplished scholar, "happy 
in his mode of instruction." In a friendly manner, 
he was willing to aid in his difficulties, a boy disposed to 
study. Taney entered the College not sufficiently 
advanced in his preparation to become a Junior, but 
with more than enough instruction to become a Sopho- 
more. Professor Huston 21 saw that Taney and a class- 
mate, who was in a like situation, "would be idle and 
unemployed for the greater part" of the time, if they 
"were held back and confined" to the Sophomore studies. 
Consequently, he proposed that the two boys be put in 
a class by themselves and be given an "opportunity, 
by close application, to overtake the Junior class, so 
as to be ready to enter with them the Senior year and 
to graduate with them. "Taney and John Lyon," the 
other youth, "gladly accepted his proposition;" both, 
"perhaps, flattered by the good opinion" of the teacher, 
and "anxious not to disappoint him." By hard study 
and helping one another, they gained on the class be- 
fore them, and, as Taney proudly related, "when we 
were examined with them, preparatory to our admission 
to the Senior Class, we were, by no means, the worst 
scholars." During the whole course, Taney states; 
"I studied closely, was always well prepared in my 
lessons, and, while I gladly joined my companions, in 
their athletic sports and amusements, I yet found time 
to read a great deal beyond the books we were required 
to study. And as my course of reading was selected 
by myself and governed by the impulse or taste of the 
moment, it was rather desultory, and some of it not 

21 Tyler, p. 44. Huston in later life was a Judge of the Supreme Court of 
Pennsylvania. 



ROGER BROOKE TANEY 17 

wisely selected." Almost all of his time was spent at 
Carlisle. "The difficulties of the journey" were so 
great that Taney returned home but twice, and upon 
both occasions walked from Carlisle to Baltimore 22 
with a "school-companion, performing the journey in a 
little over two days" and reaching "Owings Mills, 
within twelve miles of Baltimore, on the evening of the 
second day." 

At Dickinson, as in all contemporary American col- 
leges, there were two secret literary societies. Taney 
belonged to the Belles Lettres Society, and, when the 
Senior year was drawing to a close, was put forward by 
his friends in that Society as its candidate for the honor 
of the valedictory address, an honor conferred at Car- 
lisle by ballot of the graduating class. The election was 
a close one; but, through the efforts of John Lyon, 
Taney secured the coveted honor. 23 The election had 
been "animated and exciting," but was "conducted 
with perfect good humor and kind feelings." Its result 
gratified Taney very much; but, "as most commonly 
happens to successful ambition in a wider world," 
he "soon found that success had brought with it troubles 
and anxieties to which " he " had before been a stranger. " 
An oration had to be written, which might "attract 
attention and provoke criticism" from the audience; 
but first it was to be submitted to Dr. Nisbet, and 
Taney "feared he might find it all wrong," since Taney 
"was unaccustomed to composition." In the Belles 
Lettres Society, the "exercises had consisted in de- 
bating a question agreed on, or of delivering an oration 
selected from some speech and committed to memory, 
or in reciting passages from a poem or play." This 

22 Tyler, p. 37. 

23 Tyler, pp. 47-50. 



18 ROGER BROOKE TANEY 

experience had helped him but little. He wrote that 
"the manual labor of writing was always unpleasant 
to me; and, although some of the members of the So- 
ciety, occasionally, wrote out their speeches and read 
them in the debates, and sometimes read an essay upon 
some subject selected by themselves, yet I never had 
done so. My speeches in the debate were always made 
from very brief notes, unintelligible and unmeaning 
to anybody but myself— consisting of the heads and 
order of the argument I intended to offer, each head con- 
taining only a few words, to recall to my memory the 
point I meant to urge. And when I sat down to write 
the valedictory oration, I had never written a para- 
graph of my own composition, except familiar and 
unstudied letters to my family." After expending 
much "trouble and anxiety" upon the oration, it was 
submitted to Dr. Nisbet and, to the writer's relief, it 
was returned "with only one or two verbal altera- 
tions. " 24 The day for the public examination arrived, 25 
an exercise attended by "most of the trustees, or visi- 
tors, who were in town and sometimes by other gentle- 
men of literary taste." Taney, with his classmates, 
about twenty in number, passed that ordeal, and then 
had a vacation of three or four weeks before Commence- 
ment Day. On that august occasion, the exercises 
were held in the Presbyterian Church, 26 in which a 
"large platform of unplaned plank had been erected in 
front of the pulpit." Taney gives us a vivid picture 
of his part in the ceremonies. "In front of him was a 
crowded audience of ladies and gentlemen; behind 
him, on the right, sat the professors and trustees in the 

24 Tyler, p. 51. 
26 Tyler, p. 46. 
26 Tyler, p. 53. 



ROGER BROOKE TANEY 19 

segment of the circle; and on the left, in like order, sat 
the graduates ; and in the pulpit, con- 

cealed from public view, sat some fellow-student, with 
the oration in his hand, to prompt the speaker, if his 
memory should fail him." Taney was "sadly fright- 
ened and trembled in every limb" and his "voice was 
husky and unmanageable." He was "much morti- 
fied" by this; and the "feeling of mortification made 
matters worse. Fortunately he continues, "my speech 
had been so well committed to memory, that I went 
through without the aid of the prompter." 27 

After graduation in the fall of 1795, Taney, then 
eighteen and a half years old, returned home and re- 
mained there during the following winter, "which was 
idly spent in the amusements of the country. " Taney's 
father "kept a pack of hounds and was fond of fox 
hunting." 28 "It was the custom to invite some other 
gentleman, who also kept fox hounds, to come with his 
pack on a particular day and they hunted with the 
two packs united. Other gentlemen, who were known 
to be fond of the sport, were also invited, so as to make 
a party of eight or ten persons, and sometimes more. 
The hunting usually lasted a week. The party always 
rose before day, breakfasted most commonly on spare- 
ribs (or bacon) and hominy — drank pretty freely of 
eggnog, and then mounted and were in the cover, where 
they expected to find a fox before sunrise. The foxes 
in our county were mostly the red, and, of course, 
there was much hard riding over rough ground, and the 
chase was apt to be a long one. We rarely returned 

27 A letter from Taney to Rev. Dr. Wm. B. Sprague concerning one of his 
classmates is printed in the "Annals of the American Pulpit," Vol. IV, p. 188, 
and Tyler, p. 451. 

28 Tyler, p. 55. 



20 ROGER BROOKE TANEY 

home until late in the day; and the evening was spent 
in gay conversation on the events and mishaps of the 
day, and in arrangements for the hunt of the morrow, 
or in playing whist for moderate stakes. There was 
certainly nothing like drunkenness or gambling at 
these parties. I myself never played. By the end of 
the week, the hunters and dogs were pretty well tired, 
and the party separated. But before they parted, a 
time was always fixed when my father was to bring his 
dogs to his friend's house, or they were to meet by invi- 
tation at the house of some other gentleman of the 
party, where another week would be passed in like 
manner; and these meetings, with intervals of about a 
fortnight or three weeks, were kept up until the end of 
the season. I joined in all of them: and, when not so 
engaged, my father, with my elder brother and myself, 
hunted with his own dogs, when the weather was fit. 

I liked it and enjoyed it greatly. For 

although my health was not robust, and eggnog was 
very apt to give me a headache, yet, in the excitement 
of the morning, I forgot the fatigues of the preceding 
day, and rode as hard as anybody, and followed the 
hounds with as much eagerness." After a winter of 
this sort, however, Taney felt "tired of this idle life 
and impatient to begin the study of law," the profes- 
sion his father decreed him to follow and which he him- 
self preferred. 



CHAPTER II 

Law Student at Annapolis (1796-1798) 

In the spring of 1796, Taney went to Annapolis to 
begin reading law in the office of Jeremiah Townley 
Chase, one of the Judges of the General Court. 1 "This 
Court had original jurisdiction in all civil cases through- 
out the State of Maryland, when the matter in dis- 
pute exceeded £1, in Maryland currency ($2.66f), 
and in criminal cases of the higher grade. It sat twice 
a year in Annapolis for the Western Shore, and twice 
at Easton for the Eastern Shore; and jurors from every 
county of the respective Shores were summoned to 
attend it." County Courts took its place, when the 
General Court was abolished in 1805, having been 
continued until that time, "by the confidence the people 
entertained in the ability and impartiality of the tri- 
bunal." "The Court consisted of three judges, always 
selected from the eminent men of the bar; the jurors 
from each county were taken from the most respectable 
and intelligent class of society .... The ex- 
tent of its jurisdiction and the importance of the cases 
tried in it, brought together, at its sessions, all that 
were eminent or distinguished at the bar on either of 
the Shores for which it was sitting. " For these reasons, 
the Court was "continued so long," although it was 
"exceedingly inconvenient to the suitors in the distant 
counties to attend it, and the cost of bringing witnesses 
to Annapolis, and Easton, and keeping them there some- 
times for weeks together, was oppressive and often 
ruinous to the parties. " 

1 Tyler, p. 56. 

21 



22 ROGER BROOKE TANEY 

To Annapolis, almost everybody came on horse- 
back, except those coming from Baltimore, who often 
took boat, and the sessions at the State's capital were 
the more important ones, on account of the greater 
"population, extent of territory, and commercial char- 
acter of the Western Shore." Because of the sessions 
of this court, Annapolis was considered the best place 
in Maryland, "where a man should study law, if he 
expected to attain eminence in his profession." Taney 
became one of twenty or thirty such students, 2 then 
reading law in various offices. 

He plunged into the study of law with ambition and 
ardor, and, "for weeks together, read law twelve hours 
in the twenty-four." In the retrospect, he was "con- 
vinced that this was mistaken diligence" and that he 
would have profited more, if he had read "law four of 
five hours and spent some more hours in thinking it 
over and considering the principle it established and 
the cases to which it could be applied. " He determined 
"not to go into society," until his studies were com- 
pleted, and he "adhered to that determination." "In 
the midst of the highly polished and educated society, 
for which that city was at that time distinguished," 
Taney "never visited in any family and respectfully 
declined "the kind and hospitable invitations" he 
received, though he was only nineteen years of age, 
when he came to Annapolis. He associated only with 
the students, and studied closely. Here, again, in 
later years, Taney became satisfied "that it would have 
been much better for me, if I had occasionally mixed in 
the society of ladies and gentlemen older than the 
students. My thoughts would often have been more 
cheerful, and my mind refreshed for renewed study, 

2 Tyler, p. 58. 



ROGER BROOKE TANEY 23 

and I should have acquired more ease and self-pos- 
session, in conversation with men eminent for their 
talents and position, and learned from them many 
things which law books do not teach." 

Reading law in the office of a judge, instead of in 
that of a practicing lawyer, gave Taney "more time for 
uninterrupted study;" but, on the whole, he felt that 
it had been a disadvantage to him, since there was "no 
instruction in the ordinary routine of practice, nor 
any information as to the forms and manner of plead- 
ing, " further than "could be gathered from the books. " 
"In the office of a lawyer," Taney wrote, 3 "the atten- 
tion of the student is daily called to such matters, and 
he is employed in drawing declarations and pleas, gen- 
eral and special, until the usual forms become famil- 
iar to his mind, and he learns, by actual practice in 
the office, the cases in which they should be respec- 
tively used, and what averments are material, and what 
are not." He felt that the "want of this practical 
knowledge and experience" had been a "serious incon- 
venience." Because of this fact, "for some time after 
entering upon practice," he "did not venture to draw 
the most ordinary form of a declaration or pleas, with- 
out a precedent" before him. If a declaration for the 
plaintiff was needed, "varying in any degree from the 
ordinary money counts," or a "special plea" was nec- 
essary for the defence, he examined "the principles of 
pleading which applied to it, and endeavored to find a 
precedent for a case of precisely that character; nor 
was it so easy, in that day, for an inexperienced young 
lawyer to satisfy himself upon a question of special 
pleading." Printed forms were inadequate, the ex- 
isting form books were incomplete and the great im- 

8 Tyler, p. 60. 



24 ROGER BROOKE TANEY 

portance of the adjective law was such that Taney 
forgets to tell us of any reading in the substantive law. 
" In that day, strict and nice technical pleading was the 
pride of the bar, and I might almost say of the Court," 
Taney adds. His success was so great, in learning 
pleading and practice, that we shall see him recognized 
by his colleagues as the expert in those subjects, among 
the Justices of the Supreme Court. 

Taney became an intimate friend of William Car- 
michael, who had come from the Eastern Shore to read 
law in another office in Annapolis. The young men 
roomed together for a year, and every night discussed 
together, for "mutual information," the reading of the 
day. With some other students, Taney formed a de- 
bating society, but they rarely discussed legal questions. 
Their object was to prepare themselves for the bar, 
"by the practice of oral arguments" among themselves. 
There was no moot court, for the leaders of the Annap- 
olis bar did not encourage the formation of one among 
the students. Instead of such a court, Judge Chase 
advised 4 Taney "to attend regularly the sittings of the 
General Court, to observe how the eminent men at the 
bar examined the witnesses and brought out their case, 
and raised and argued the questions of law, and after- 
wards to write a report of it for his own use." Taney 
followed his advice, and "reported a good many cases," 
but threw them into the fire, when he examined them 
after he had been admitted to the bar, being convinced 
by this examination, "that no one was fit to be a re- 
porter, who was not an accomplished lawyer." 

The first session of the General Court which Taney 
attended, made a strong impression upon him. 5 The 

4 Tyler, p. 62. 
6 Tyler, p. 64. 



ROGER BROOKE TANEY 25 

three Judges, wearing scarlet cloaks, sat in chairs placed 
on an elevated platform; and all the distinguished 
lawyers of Maryland were assembled at the bar. Taney 
was familiar "with their names and standing," for his 
"fox-hunting friends" in Calvert County "had been 
jurors to that Court, and had frequently talked to 
him about the great lawyers they had seen and heard 
at Annapolis." The young student gazed "with deep 
interest upon the array of talent and learning" and 
looked forward to the day, when he might "occupy the 
like position in the profession," receiving the emolu- 
ments the leading lawyers received, and holding the 
"high rank and social position, which were in that day" 
great inducements to "ambition for legal eminence." 
Luther Martin was then "the acknowledged and un- 
disputed head of the profession" in Maryland. 6 Wil- 
liam Pinkney was abroad. When he "returned from 
England and resumed the practice, the reign of Martin 
was at an end." 7 Over a half century later, Taney, 
having "heard almost all the great advocates of the 
United States, both of the past and present generation," 
wrote, that "I have seen none equal to Pinkney." 
Three years passed 8 of close study in Judge Chase's 
office, and then Taney was admitted to the practise in 
the spring of 1799. His timidity made him fear that 
he should break down in his "first essay at the bar." 
He could not write out a speech, for he "could not know 
precisely what the evidence would be, nor what points 
might arise," and he knew that he "must be able to 
think and exercise the power of reasoning," while "he 
was speaking, and while he was conscious that every 

6 Tyler, pp. 65-69. 

7 Tyler, pp. 69-74. 

8 Tyler, p. 75. 



26 ROGER BROOKE TANEY 

one was looking" at him and listening to him. There- 
fore, a "very humble forum" — the Mayor's Court at 
Annapolis — was selected for Taney's "first effort." 
The Mayor was a "good natured, old gentleman," 
who "had never studied law," and Taney was quite 
sure that he "knew more law and had more capacity 
also, than the Mayor, or any of the aldermen who sat 
with him," to try "petty offences committed within the 
precincts of the city." 9 Gabriel Duvall, then a Judge 
of the General Court and afterwards a Judge of the 
Supreme Court of the United States, was the Recorder, 
but he did not regularly attend court, and Taney "had 
no suspicion that Judge Duvall," for whom the young 
lawyer "had the highest respect, would think it worth 
his while to preside at the trial" of the case of a man 
whom Taney was to defend and who had been "indicted 
for assault and battery, in which very little mischief 
had been done to either party." Before the Court and 
Jury whom he expected to appear, Taney thought that 
he could "speak without confusion," if he could ever 
do so. A fellow student, who had also just been ad- 
mitted to the bar, was associated with Taney in the 
defence. Just as the jury had been empanelled and 
the young attorneys "felt quite brave and men of some 
consequence," to their "utter dismay, in walked Re- 
corder Duvall, with his grave face and dignified deport- 
ment, and took his seat on the bench." Taney and 
his associate were both frightened, for they "had been 
accustomed to see him administering Justice in the 
General Court, and listening to the first lawyers of the 
State." They thought that he would contrast the 
efforts of the tyros with those of the leaders of the bar. 
They could not draw back, however, and found his 

9 Tyler, p. 76. 



ROGER BROOKE TANEY 27 

manner kind and encouraging. Taney remembered the 
case years later, as "a very good one for a speech. As 
almost always happens, when a fight takes place in an 
excited crowd, there was much contradictory testi- 
mony, and it was difficult to say whether our client 
committed the assault, or struck in self defence." 
Taney "watched the testimony carefully, as it was 
given in;" but took no notes, for his hand shook so that 
he "could not have written a word legibly," if his 
"life had depended on it." In his vivid recollection 
of the scene, he recalled that, "when I rose to speak, I 
was obliged to fold my arms over my breast, pressing 
them firmly against my body; and my knees trembled 
under me, so that I was obliged to press my limbs 
against the table before me, to keep me steady on my 
feet." Yet, "by a strong effort of the will," he "man- 
aged to keep possession of the reasoning faculties, and 
made pretty good argument in the case, but in a trem- 
ulous and somewhat discordant voice." The verdict 
was in favor of Taney's client, but this fact hardly 
consoled the young lawyer "for the timidity" he "had 
displayed and the want of physical firmness, which 
seemed" to him "to be little better than absolute 
cowardice." 

Taney never quite became free of "this morbid 
sensibility," 10 and, "in the first years of his practice," 
found it so painful that it might have led him to abandon 
the practice of the law, if he could have afforded 
to live without it. He tells us that "I never, for a 
moment, thought of engaging in any other pursuit. I 
knew that my father and family had formed high hopes 
of my future eminence and that a great deal of money 
had been spent on my education. So I determined, 

10 Tyler, p. 79. 



28 ROGER BROOKE TANEY 

from the first, to march forward in the path I had chosen, 
and, whatever it might cost me, to speak on every oc- 
casion, professional or political, when my duty required 
it." He added that a "firm and resolute will can do a 
great deal," yet he felt that, "upon many occasions 
throughout" his "professional career," this "morbid 
sensibility" had given him "deep pain and mortifi- 
cation." Throughout his long professional life, he 
"was never able entirely to conquer it." Taney diag- 
nosed the "source of this misfortune," as his delicate 
health. His health had been infirm from his "earli- 
est recollection," and his "system was put out of order 
by slight exposure." "The excitement and mental 
exertion of a Court which lasted two or three weeks" 
caused Taney to feel, at the end of it, that his "strength 
was impaired" and that he "needed repose." He 
never knew whether this "sensibility" would "harass" 
him or not, until he rose to speak. "Chiefly on account 
of the consciousness of his weakness," he "uniformly 
refused to make a Fourth of July address, or to speak 
upon any of those occasions where an orator of the day 
is a part of the ceremony." His recollection was, 
that: "Although I had been some years in the practice, 
when I made my first speech in the Court of Appeals of 
Maryland, and many more, when I first appeared in 
the Supreme Court of the United States, I felt it on 
each of these occasions nearly as much, as when I tried 
the case in the Mayor's Court. Even in the courts in 
which I was familiar, and where I had risen to the first 
rank of the profession and tried almost every case of any 
importance, I have sometimes felt it at the beginning of 
a term, although I had so mastered it that nobody per- 
ceived it but myself." 



CHAPTER III 

Lawyer in Calvert County and Member of the 
House of Delegates (1798-1801) 

Shortly after his admission to the bar, Taney returned 
to Calvert County, as his father desired he should 
begin practice there, "attending also the Courts in the 
adjoining counties." Taney felt that "it was not a 
very desirable theatre for a lawyer, for the counties 
were small and the population agricultural, so that 
there were but few controversies of much moment, and 
a lawyer confined to those counties, even in full prac- 
tice, could hope for little more than a mere support." 
Taney's father had, however, "ulterior objects," in 
wishing that his son should settle in Calvert. He had, 
frequently, sat in the House of Delegates at Annapolis, 
as a member from his county and "he looked upon 
distinction in the profession of the law as a stepping 
stone to political power." He believed that his son, 
on whose "capacity he placed high hopes," could more 
readily make his "way into public life from that part 
of the State, than from any other and might then se- 
lect a more suitable theatre for the practice of the law. " 
He proposed, therefore, that Roger Taney become a 
candidate for the House of Delegates, 1 and the latter 
was "sufficiently imbued with political ambition to be 
willing to go at once into political life." Furthermore, 
he was "not a little flattered at the idea of becoming" — 
at the age of twenty-two years — a member of that 
General Assembly, in whose membership he had seen 
every year "some of the most distinguished men of the 

* Tyler, p. 81. 

29 



30 ROGER BROOKE TANEY 

State" and to whose debates he had listened, while he 
was a law student at Annapolis. 

He feared, however, that he could not be elected; 
for he had been "absent from the county, with short 
intervals," from his boyhood and was "personally 
known to very few of its inhabitants." The son was 
unwilling to begin his political career with a defeat, but 
the father thought there was no danger of that. The 
father's friends agreed with him, and so Roger Taney 
permitted his candidacy to be announced. He was a 
Federalist, to which party his "family and friends 
generally belonged;" but, at that period, "it was not 
thought expedient, or right in principle, to carry these 
party divisions and conflicts into the concerns of the 
State, and the election of the candidate depended on 
his personal weight and supposed fitness for the posi- 
tion and the influence of friends who took an interest 
in him." At the election of 1799, five candidates 
presented themselves in Calvert County, but only four 
members were to be chosen. At that period, the elec- 
tors for the whole county came to vote, viva voce, at 
the Court House in the little hamlet of Prince Fred- 
ericktown in the center of the county. The area of the 
county is about 215 square miles, and the population 
was 8652 in 1790, nearly the same as now, for there has 
been little change in the number of inhabitants during 
the century and a quarter which have passed. About 
half of the population were negroes and the property 
qualification for voters had not yet been abolished, so 
that there were only a few hundred men who could 
exercise the elective franchise. The sheriff held the 
election, which lasted four days, at the end of which 
time he closed polls and proclaimed in a loud voice, 
the names of those who were chosen. During the time 



ROGER BROOKE TANEY 31 

that the polls were open, the candidates "sat on a raised 
bench, immediately behind the sheriff, so that each of 
them could see and be seen by every voter." Taney 
relates that: "When a voter came up, every candidate 
began to solicit his vote and press his own name upon 
him; and as many of the voters cared very little about 
the candidates, except the particular favorite he came 
to support, I think it very likely that the skilful in these 
struggles sometimes obtained votes that would other- 
wise have been given to another. " Jests and rough and 
ready repartees abounded, but Taney "made no great 
figure in that part of the contest," because of lack of 
experience and of knowledge of the voters even by name. 
Fortunately for him, some of his friends often stood 
near and spoke for him. At the closing of the polls, 
Taney was one of those chosen in a close election. He 
felt that he owed his success to "the active and ener- 
getic support of a few personal and popular friends." 
The Court room was crowded to hear the result and 
Taney, "very modestly, returned thanks, in a brief 
speech," for the honor given him. 2 The speech "was 
received with loud hurrahs" and he "was, immediately, 
placed in a chair, raised upon the shoulders of the 
crowd, and marched in triumph about the courthouse 
green." The other successful candidates were also 
cheered, but Taney was the "only one accustomed to 
public speaking and the only one who made a speech." 
The Session of the General Assembly, to which 
Taney was elected, began on Monday, November 5, 
1799 3 T/ ne House of Delegates was composed of four 
members from each of the nineteen counties into which 

2 Tyler, p. 83. 

3 William D. Carcaud, William D. Browne, and Walter Mackall were the 
other Delegates from Calvert County. 



32 ROGER BROOKE TANEY 

Maryland was divided and two each from the cities of 
Baltimore and Annapolis. Taney took a remarkably 
prominent position in the House, considering his youth 
and inexperience in public affairs. Instead of referring 
each bill to a standing committee, the practice then was 
to appoint special committees to bring in or report on 
bills. We find him appointed to serve upon many such 
committees and even named as chairman of some of 
them; for example, those upon superintending the 
revenue 4 and on coroners and sheriffs. 5 He served as 
member of committees, to bring in an insolvency bill, 6 
to settle the rate of interest on open accounts, 7 to have 
the State relinquish its right to certain lots, 8 to compel 
the attendance of members, 9 to regulate constables' 
fees, 10 on a claim of Thomas Contee against the State, 11 
on a lost certificate issued by the sheriff of Calvert 
County, 12 on an appropriation for Charlotte Hall Acad- 
emy, 13 on the conference committee on the Governor's 
message, 14 on a Bank at Fell's Point in Baltimore 
City, 15 on a road in Talbot County, 16 on confiscated 
property, 17 on the State's stock in the Bank of England, 18 
on a private road by Thomas Owings' grist and fulling 

4 December 13. 

5 January 2. 

6 November 6 and 14. 

7 November 8. 

8 November 12. 

9 November 12. On December 7 he voted to do this. 

10 November 14. 

11 November 15. 

12 November 16. He reported for this committee. 

13 November 19. He reported favorably for the committee on November 26. 

14 November 24. He reported an answer to the Senate on November 27. 
16 November 25. 

16 November 28. 

17 December 9. 

18 December 9. 



ROGER BROOKE TANEY 33 

mill, where he had rested on his way home from col- 
lege some years before, 19 on a letter from the Governor 
of Virginia concerning a hospital, 20 on partition of 
estates of decedents, 21 on the better preservation of 
wills, 22 and on pensions to widows of Revolutionary 
soldiers. 23 He voted to abolish the property qualifica- 
tion for voters 24 and against the repeal of a per diem 
allowance for legislators, 25 holding that the repeal would 
tend to "exclude from the House all persons not possessed 
of affluent fortunes." He also voted against a State 
subscription to the Bank of Baltimore, and to establish 
an academy at Easton. 26 

The act of his which he remembered with most pleas- 
ure half a century later, was his support of "the law 
authorizing a canal between the Chesapeake and Dela- 
ware Bays" 27 which made a short route between Balti- 
more and Philadelphia. ' ' This law was strongly opposed 
by the Baltimore interest," which feared diversion of 
trade from the City, "brought out a great deal of dis- 
cussion and was carried through with much difficulty." 
Taney tells us that he "took an active part in favor of 
it" and that he felt that, before the session ended, he 
"was listened to with respect and attention, " whenever 
he spoke. 

While the Assembly met, General Washington died. 
The news reached Annapolis in the evening, 28 and, on 

19 December 10. 

20 December 13. 

21 December 13. 

22 December 16. 

23 December 23. 

24 November 12. 

25 November 19. 
28 December 27. 

27 Tyler, p. 84. November 27 and December 4. 



IS 



Tyler, p. 84. 



34 ROGER BROOKE TANEY 

the next morning, "immediately after the Houses were 
organized, the Senate sent down a message to the 
House of Delegates," by Charles Carroll of Carrollton 
and John Eager Howard, "proposing to pay appropriate 
honors." Over half a century later, Taney wrote, 
"I never witnessed a more impressive scene. The two 
honored Senators, with their grey locks, stood at the 
bar of the House, with the tears rolling down their 
cheeks. The Speaker and members rose to receive 
them, and stood, while the message was delivered. It 
was no empty, formal pageant. It was the outward 
sign of the grief within, and few were present who did 
not shed tears on the occasion. My eyes, I am sure, 
were not dry." 

Early in January, the session ended and Taney re- 
turned home. In the retrospect, he felt that the ex- 
perience "was, certainly, of much advantage to me in 
my future life." The discussions enabled him "to 
speak with less sense of embarrassment" and dimin- 
ished his "morbid sensibility." He was also brought 
"into familiar association with the most distinguished 
men in the State, in debate and in the conduct of public 
affairs." Laying aside his "solitary habits," Taney 
had "mixed freely in the society of the place, which, 
at that period, was always gay during the session of 
the General Assembly and highly cultivated and re- 
fined." He was not always at ease in society, and his 
"defective vision," which rendered it difficult for him 
to recognize faces of persons he had not seen frequently, 
made him "feel awkward and uncomfortable, on en- 
tering a room." "This imperfect vision," Taney re- 
marked with some melancholy, "is a most unfortunate 
infirmity for a man in public life, who must unavoid- 
ably become acquainted with a multitude of people, 



ROGER BROOKE TANEY 35 

whose good will he desires to preserve. And there is 
no readier way to lose it than to pass, without a sign of 
recognition, one to whom perhaps you were introduced 
the day before and familiarly conversed with." Taney 
feared that this defective eyesight had caused him to 
pass often without knowing them, men for whom he 
"entertained a real respect and regard." His eyes 
stood use well, so that in 1854 he wrote: "I can now 
read ordinary print, or write, by the light of a single 
candle; but I, sometimes, pass my own children on the 
street without knowing them, until they speak to me." 29 

After Taney's return from Annapolis, he passed some 
time "idly. There was very little professional busi- 
ness to occupy me," he wrote, as he recalled those 
days, "and I read very little law, and not a great deal 
of anything else. What I did read was chiefly belles 
lettres, or political and historical writings. I mixed but 
little in the society of the county, and returned again 
very much to my retired domestic life, spending my 
time with my own family. Indeed I have always loved 
the country and country scenes, too much to study, 
except in the long nights of winter. When the weather 
permitted, I was always out, wandering on the shore of 
the river, or in the woods, much of the time alone, 
occupied with my own meditations, or sitting, often 
for hours together, under the shade, and looking almost 
listlessly at the prospect before me. There was always 
a love of the romantic about me, and my thoughts and 
imaginings, when alone, were more frequently in that 
direction than in the real business of life." 30 

Whatever earnest work he did, was chiefly done with 
a view to familiarize himself with the "business of the 

29 Tyler, p. 87. 

30 Tyler, p. 87. 



36 ROGER BROOKE TANEY 

State," so as to qualify himself to take a leading part 
at the next session of the House of Delegates, to which 
he had high hopes of a reelection. It was, however, 
the year of the Presidential election, and the question 
as to the method of choosing Presidential electors was 
one "upon which the whole State became agitated, and 
the election of the candidate in every county was sup- 
ported, or opposed, according to his opinions on this 
question," instead of according to "his personal popu- 
larity." The Federalist leaders, probably instigated 
by Robert Goodloe Harper, who had recently removed 
to Maryland from South Carolina, advocated the choice 
of the electors by the Legislature, instead of by popu- 
lar vote in districts, as the existing statute required. 
The Federalist leaders, as "always, too sanguine," 
wished for a vote by general ticket, believing that they 
could carry the State, but they could not secure such 
a law, for "the political power was in the hands of the 
counties." The agricultural population of the coun- 
ties "were very jealous of the growing influence of 
Baltimore and, unwilling to give the commercial in- 
terest any increase of power, fearing it would be used 
in a manner that might prove injurious to the landed 
interest. And if a legislature composed of a majority 
of Federalists, had passed a law by which the majority 
in the counties might be overwhelmed by a sweeping 
majority in town, they would have been inevitably 
ruined in the counties, and lost all influence in the State 
Government." The only hope then to secure the vote 
of the whole State for John Adams was to have the 
matter "put to the people, as organized in the State 
Government, and not to the numerical majority." 31 

31 Tyler, p. 88-92-; see also Steiner's "Life of James McHenry," Chapter 
XVI. 



ROGER BROOKE TANEY 37 

This proposal was opposed by the Jeffersonians on the 
ground that it "took away the rights of the people," 
and some of Adams' supporters agreed with this view; 
but Taney "did not see the force of this objection," 
claiming that each voter, whether casting his "vote 
for the Electors, or for members of the Legislature, 
designated the person whom he wished to be President ; 
and his share of the sovereign power was equally exer- 
cised, whether he accomplished his object by voting 
immediately for the President preferred, or appointing 
an agent, or several agents, to execute his wishes." 
Taney was the only speaker among the Federalist 
candidates, and addressed three or four public meet- 
ings during the canvass. He was confident of success; 
but, to his surprise, in a close vote, three of the four 
Federalist candidates in the county, including himself, 
were defeated. The Federalists lost control of the 
Legislature, and the power of the State was found 
"in the hands of the Republican party" of Jefferson. 
Adams' unpopularity in Maryland contributed greatly 
to this result. The defeat greatly mortified Michael 
Taney and his son, and "put an end to any prospect of 
immediate political elevation" for the latter. He had 
never intended to reside permanently in Calvert County 
and felt that "there was no object to be gained by con- 
tinuing there any longer." Neither father nor son 
wished that Roger Taney remain in Calvert for another 
year, as he wrote: "doing nothing to advance me in 
my profession, but wasting my time in small contests 
for county ascendancy." Where then, should he set- 
tle? 32 Father and son "had many consultations upon 
the subject." The father suggested Baltimore, but the 
son "had scarcely any personal acquaintances there" 

32 Tyler, p. 94. 



38 ROGER BROOKE TANEY 

and feared that, without them, he "should be lost in a 
large city." He then suggested Frederick, a town 
which, next to Annapolis and Baltimore, "was, with a 
view to profit, the best point of practice in the State." 
Then, too, one of the two leaders of that bar had re- 
cently retired from practice and the other, Arthur 
Shaaff, was removing to Annapolis. The remaining 
members of the Frederick bar were young, most of 
them being but a few years older than Taney. He 
had also formed friendships, when he was at Annapolis, 
with some young men who resided in Frederick and 
felt that he "should not there be as lonely and without 
friends" on his first arrival, as he would have been in 
Baltimore. Michael Taney yielded to his son's argu- 
ments, and, in March 1801, Roger Taney took up his 
residence in Frederick, and made his first speech in the 
Court there — a "volunteer speech," made at the in- 
vitation of Mr. Shaaff, who still practiced in Frederick, 
in one of his cases, in order to give Taney "an oppor- 
tunity of appearing before the public." 33 

33 Tyler, p. 95. It is with deep regret that we lose the assistance of Taney's 
precious autobiography at this point in his life — would he had written more 
of it! 

Miss Eleanor Murdoch Johnson, of Frederick, possesses a letter written by 
Taney from Annapolis on July 2, 1799, in which he states: 

"By the advice of Mr. Chase I qualified in the County Court and on the 19th 
of June, in the year of our Lord 1799, I commenced Attorney-at-Law. I made 
my Maiden speech on the Friday following, in defence of as great a scoundrel 
as ever lived, who was indicted for a felony. However, what he had done 
was only a private fraud, and not a felony in the eye of the law, so that I 
felt myself perfectly justifiable in defending him, as every man ought to be 

punished only according to the laws of his country He was acquitted. 

Watts and I defended him. But the fellow was too poor to give us any fees." 

In the letter which was addressed to William Potts, then living in Baltimore, 
Taney apologizes for not writing before, because he was very much engaged 
during the whole of the General Court, in attending to the proceedings and 
taking notes on the points that were raised." He was undecided where to 
settle, but had "given up all thoughts of coming to Baltimore." 




ROGER BROOKE TANEY 

From a silhouette made in Frederick about IS20 



CHAPTER IV 

Law Practice at Frederick (1801-1823) 

According to the census of 1790, the rich, agricul- 
tural country of Frederick, had a population of 30,791, 
and the town of the same name, which was the county 
seat, contained 2606 people. The county was larger 
geographically than at present, for it then contained 
the western half of the present Carroll County. Fol- 
lowing the fertile valleys between the parallel ranges 
of the Appalachians, the Brunners, the Brengles, the 
Ramsburgs and Getzendanners, and many another 
immigrant from the Rhine Country had come into 
this area between 1730 and 1740, and had met there 
men like Thomas Schley and other Germans, who had 
come from Baltimore across Parr's Ridge by the old 
Frederick Road. 1 To Frederick also had come men 
of English stock, like the Thomases and Johnsons 
from Southern Maryland, like Potts and Sheredine. 
The county was set apart in 1748 and the town was 
laid out about 1745, and each took its name with a sort 
of squinting reference to the heir apparent, for Frederick, 
son of George II, was Prince of Wales, and the Prince's 
friend, Charles, Lord Baltimore, had named his son, 
Frederick, in his honor. There were some manufactur- 
ers; but, for the most part, the people were farmers, and 
the best of farmers. There were few negroes, except 
household slaves, and the farms were worked either 
by their owners, or by tenants who leased them on 
shares. The little "mountain city" lay in the valley 
of the Monocacy, which stretches from the Linganore 

1 Tyler, p. 95. 

39 



40 ROGER BROOKE TANEY 

Hills to the Catoctin Mountain — a valley which already 
was smiling and "fair as the garden of the Lord." 

The National Pike ran west from the town by Brad- 
dock's Spring, where the ill fated General's army camped 
for the night, down into the lovely Middletown, or 
Pleasant Valley, and then across the Blue Ridge, 
dipping down again into the valley of the Conocheague, 
passing the future battle field of Antietam on the left, 
and leading on to the county seat of Washington County, 
a town which its founder, Jonathan Hager, tried to 
call after his wife, Elizabeth; but which the people 
insisted should bear his name, and be known as Hagers- 
town. To the south of Frederick lay the tract of land 
known as Carrollton Manor — more often called The 
Manor, which belonged to the Carrolls, and from which 
the most famous of that family took his epithet. To 
the north, the road led past the village of Woodsboro', 
stretching along its one street, to Creagerstown, near 
which had been the first church of the German settlers 
on the Monocacy, and to Double Pipe Creek, near 
which stream stood the dwelling of John Ross Key. 

His son, Francis Scott Key, had graduated at St. 
John's College in 1796, and, as a lawyer, had studied 
law with Taney at Annapolis, After a brief time spent 
at Frederick, he settled at Georgetown in the District 
of Columbia, and was building up for himself one of 
the largest practices before the Supreme Court of the 
United States. His reputation as a lawyer is forgotten, 
but his fine hymn beginning with the line, "Lord, with 
glowing heart I'd praise thee," is still in the hymnaries, 
and his authorship of the National Anthem has made 
his memory secure in the heart of every American. He 
had one sister, Ann Phoebe Charlton Key, and Taney's 
friendship for the brother led to his introduction into 



ROGER BROOKE TANEY 41 

the household, to his love for the sister, and to his mar- 
riage of her. 

The little town of Frederick was the second in size in 
the whole State, being surpassed in population only by 
Baltimore, the commercial emporium. Its best known 
resident had been Governor Thomas Johnson, who had 
come from Southern Maryland, had become the first 
governor of the State, and had been the friend of Wash- 
ington. He lived at Rose Hill about a mile from the 
town, and, as he was a native of Calvert County, and a 
friend of Taney's father, 2 the young lawer often went 
thither to consult with him on professional matters, 
and to talk of the men and events of the Revolution. 
Johnson had retired from practice, and could tell how 
he had nominated Washington in 1775, as Commander- 
in-Chief of the American forces, and how, as the first 
President of the United States, Washington had, in 
vain, endeavored to induce Johnson to accept the 
Secretaryship of State or a seat on the Bench of the 
Supreme Court. His niece was the wife of John Quincy 
Adams. The Hansons and the Thomases, who had 
intermarried, were as prominent as the Johnsons. 
John Hanson had been a delegate from Maryland to 
the Confederation Congress, and had served as its 
President in 1781. John Hanson Thomas, whose 
family also was a Southern Maryland one, was a patron 
of Taney in the early days. Nor must the Pottses be 
forgotten. Richard Potts, the head of the family, 
had sat at the Continental Congress, and had been a 
United States Senator, and his wife's position in the 
community was such that as late as 1870, the old negro 
women, in scornful contempt of the wife of a parvenu 
would say: "She must think she's Mrs. Dicky Potts." 

2 Tylfer, p. 98. 



42 ROGER BROOKE TANEY 

Besides these families of English descent, stood the 
representatives of the early German settlers, such as 
Colonel Stephen Steiner, who was at this time, pre- 
paring to build the fine spire of the Evangelical Reformed 
Church, which is central of those "clustered spires of 
Frederick," standing "green walled by the hills of 
Maryland." Another representative of these families, 
Henry S. Geyer, was soon to emigrate to Missouri, des- 
tined to become United States Senator therefrom, and 
also to become counsel for the alleged master, in the 
great Dred Scott Case — so fateful in Taney's career. 
The major part of the townspeople were of German 
descent. Some few of them were children of Hessian 
soldiers who had surrendered with Burgoyne, had 
been confined in Frederick in the barracks they built 
on a hill to the south of the town, and had preferred to 
remain in America after the treaty of peace. Among 
the people of the town, was a quiet woman, one Bar- 
bara Fritchie, the wife of a glover. Neither she nor 
Taney ever had any idea that she would be the heroine of 
a famous poem, and that an act of patriotism attrib- 
uted to her, would make her one of Frederick's notables. 

In the town of Frederick, Taney lived and practiced 
law for nearly a quarter of a century. There, as a 
writer stated in 1838, he "showed that he possessed a 
mind of the highest order, that judgment, acuteness, 
penetration, capacious memory, accurate learning, 
steady perseverance in the discharge of duty, a lofty 
integrity, united with a grave and winning elocution." 3 

Mr. Justice Wayne, who had sat on the Supreme Bench 
with Taney throughout the whole of the latter's long 
judicial career, in his memorial address upon Taney in 
1864, referred to the fact 4 that Taney's "general de- 

3 4 So. Lit. Mess. (1838), p. 348. 
* 2 Wallace X. 



ROGER BROOKE TANEY 43 

meanor, studious habits, and pure life gave him the 
good will and confidence of the people of Frederick." 
During the years of his residence there, he "made 
himself familiar with the history of the law in all its 
relations; for the organization of government, for the 
preservation of human rights, and also with those 
principles which had sprung from the instincts of men 
as to right and wrong, or which had been arbitrarily 
made, in ancient and later times, to rule the rights of 
property and the general conduct of persons in society, 
in connection with their obligations to authority. 
. . . . That course of reading and reflection famil- 
iarized him with the consideration of human rights, 
and strengthened his ability and disposition to maintain 
them. But he was no enthusiast. He thought that 
men had not been solely the victims of power, but of 

circumstances, in all times He thought 

that God had designed for men rights, whatever might 
be the condition of their humanity, which could not be 
taken from them by fraud, by violence, or by avarice, 
with impunity from God's chastisement." 

Taney's practice had become so well established, 
when he had been five years at the Frederick bar, that 
he was justified in marrying, and he wedded the sister 
of his friend, Francis Scott Key, at her father's home, 
on January 7, 1806. He had met her at Annapolis, 5 
and "her beauty and bright mind and womanly graces 
won his heart." Tyler tells us that "the mansion 
where she was born was of brick, with center and wings 
and long porches. It was situated amidst a large 
lawn, shaded by trees and extensive terraced garden 

6 Tyler, p. 101. A portrait of Taney, painted by Emanuel Lentze for Mr. 
Campbell, and purchased by the sale of his effects by Mr. Etting, was offered 
for sale by Rosenbach of Philadelphia in 1917. 



44 ROGER BROOKE TANEY 

adorned with shrubbery and flowers. Nearby flowed 
Pipe Creek, through dense woods. A copious spring of 
pure water, where young people loved to retire and sit 
under the sheltering oaks in summer, was at the foot 
of the hill. A meadow of waving grass spread out 
toward the Catoctin Mountain, which could be seen at 
sunset, curtained in clouds of crimson and gold. 6 Taney 
was a Roman Catholic, while the Keys were devout 
members of the Protestant Episcopal Church, and so, 
according to the rule of the day, the children should 
follow the faith of the parent of their own sex. The only 
son of the marriage died young, and the six daughters 
were all brought up as Protestants. 7 Taney seems 
never to have tried to proselyte his family, and, when 

6 Key offered the place for sale in 1822. 13 Md. Hist. Mag. p. 129. 

7 McHenry Howard, Esq., in "Some Old English Letters," II 9 Md. Hist. 
Mag., p. 108, discusses the Key family. Mrs. Taney was four years younger 
than her brother, and was born June 13, 1783, and died September 29, 1855. 
Taney's children were: 1) Anne Arnold Key, born August 24, 1808, married 
James Mason Campbell, Esq., of Baltimore, on May 27, 1834, at Wash- 
ington; 2) Elizabeth Maynadier, born April 8, 1810, married William Stevenson, 
a Baltimore merchant and had no children; 3) Ellen Mary, born August 29, 
1813, died unmarried September 28, 1871; 4) Augustus Brooke, born Sep- 
tember 15, 1815, died in infancy; 5) Sophia Brooke, born December 31, 1817, 
married Colonel Francis Taylor, U. S. A., and had one son, Roger Taney, 
who had no issue; 6) Maria Key, bom February 19, 1819, married Major 
Richard T. Allison, U. S. A. and C. S. A., afterwards Clerk of the Superior 
Court of Baltimore City, and had no issue; 7) Alice Carroll, born June 25, 
1827, died, unmarried, of yellow fever in September, 1855. Those who knew 
her long remembered her loveliness. Mrs. Campbell had a large family: 1) 
Phoebe Key, born June 23, 1836, married Rev. Augustus P. Stryker, and 
had two sons, Rev. Mason Campbell Stryker and Heber Halsey Stryker, of 
Hartford, Connecticut; 2) Mary Monica, born December 25, 1838, married 
Winfield Scott Anderson and had Rev. Roger Brooke Taney Anderson; 3) 
Alice Taney, born March 17, 1841, married Colonel Frank Marx Etting, 
U. S. A., and had no children; 4) Roger Brooke Taney, born June 3, 1843, died 
unmarried; 5) Anne Taney, born February 10, 1846, died unmarried; 6) 
Elizabeth Maynadier, born March 24, 1849, died unmarried; 7) Amy Main- 
waring, born March 11, 1854, died unmarried. The above information has 
been obtained from Messrs. McHenry Howard and E. Glenn Perine. 



ROGER BROOKE TANEY 45 

a priest tried to urge the claims of the Roman Catholic 
Church at Taney's table, one day, he was promptly 
rebuked with the remark: "I never permit religion to 
be discussed at my table." On the other hand, Mrs. 
Taney did not object to her daughters attending serv- 
ice at the Roman Catholic Church, when they had 
been to worship at All Saints' Protestant Episcopal 
Church in the morning; but would frequently say, 
when the bell for vespers rang, and Taney prepared 
to leave the house in order to attend service: "Girls, 
which one of you will go to church tonight with your 
father?" 

Taney himself was very devout and regular in the 
performance of religious duties, as he understood them, 
and, during his residence in Frederick, was to be seen 
every morning in the little chapel of the Jesuit novitiate. 
There he buried his mother, 8 and thither his own body 
was brought to be laid by her side. The body of Mrs. 
Taney, however, as she died a Protestant, could not be 
interred beside her husband's, in ground consecrated 
by the rites of his church, and so he laid it beside those 
of her relatives, in the beautiful Mt. Olivet Cemetery, 
at the other end of the town. 

Shortly before his death, Taney wrote a cousin, 
Ethelbert Taney, "the only one left of the name from 
whom" he ever received a letter, and said that, in look- 
ing forward toward the close of life, 9 "most thankful 
I am, that the reading, reflection, studies, and experi- 
ences of a long life have strengthened and confirmed 
my faith in the Catholic Church, which has never 
ceased to teach her children how they should live and 
how they should die." 

3 Tyler, p. 143. 
9 Tyler, p. 475. 



46 ROGER BROOKE TANEY 

Tyler, who was both an intimate friend and a Prot- 
estant, states that Taney never obtruded "his religious 
doctrines upon any one. He often talked to me, in 
incidental conversations, on the general subject of 
religion; but the mantle of his charity was as broad as 
the sinning world." Just before Taney left Frederick, 
in September, 1822, the Rev. John McElroy took 
charge of the Roman Catholic Church there, and, in 
1871, when over ninety years of age, he wrote Tyler, 
at the latter's solicitation, "concerning Judge Taney's 
practical religion" 10 "that his well known humility 
made the practice of confession easy to him. Often have 
I seen him stand at the outer door leading to the con- 
fessional, in a crowd of penitents, a majority colored, 
awaiting his turn for admission. I proposed to introduce 
him by another door to my confessional, but he would 
not accept of any deviation from the established 
custom." 11 

Mr. Justice Daniel told Tyler 12 that, at one time, 
"while all the judges were boarding at the same house 
in Washington, and before the hour for going up to 
the Court" he opened the door of Taney's room, and 
"found him on his knees at prayer." Daniel "with- 
drew instantly, much mortified that he had forgotten 
to rap before he entered the room," and, when he 
apologized for the intrusion, Taney replied that "It was 
his custom, before he began the duties of the day, to 
seek divine guidance through prayer." Tyler added 
that Taney's "religion was the moving principle of 
his life." 

10 Tyler, p. 476. 

11 Father McElroy added that, "in Washington, he continued to practice all 
the duties prescribed by the Catholic Church." 

12 Tyler, p. 477. 



ROGER BROOKE TANEY 47 

In November, 1803, the legislature of Maryland 
authorized Taney and six other men to superintend a 
lottery to raise $3600 with which to complete the beauti- 
ful Roman Catholic Church in Frederick. The man- 
agers gave bond in the following February, delivered 
the prizes to the "fortunate adventurers" within 
six months, and "applied the proceeds to the com- 
pletion of the church within two years. " 13 

Except for the subject of religion, Taney and his 
wife were not divided, and his love for her was life- 
long and tender. His friendship for his brother-in-law 
was close, and, for years, the two families met annually 
at the Key homestead 14 to enjoy a family reunion, and 
to close each day with family prayers, the negroes being 
summoned to meet with the family, while the exercises 
were conducted by Francis Scott Key, 15 or by his mother, 
when he was absent. Tyler tells us that 16 "no man was 
ever more happily married than Mr. Taney. And the 
happy circumstances of this period shed a benign 
influence over his studious and contemplative life, and 
nurtured that bland suavity of manner which distin- 
guished him, while they made the home-circle the 
sphere of his happiness." 

13 Edward S. Delaplaine, "Chief Justice Roger B. Taney — His career at 
the Frederick Bar," in 13 Md. Hist. Mag. 109 at p. 127, reprinted in Am. Law 
Rev. for July-August, 1918. In August, 1917, 1 suggested to Mr. Delaplaine, 
a talented young member of the Frederick Bar, who has served his county with 
credit for two terms in the House of Delegates, that he take up this subject, 
which he has handled thoroughly, and, by his treatment of it, has placed every 
student of Taney's life under obligations. 

"Tyler, p. 101. 

16 Taney's friendship for Key was lifelong, and was shown by such acts as 
the trip which Taney took in 1814 to Georgetown, where Key resided, to try to 
persuade Key's family to stay with him, or with Key's father in the country, 
until the danger from the British invasion should be past (Preface to Key's 
Poems). 

16 Tyler, p. 102. 



48 ROGER BROOKE TANEY 

He was fond of society, and, on Independence Day, 
was wont to dine with a group of friends, under 16 
the beech trees on the banks of the Monocacy, some 
two miles from Frederick. 17 A good horseman, he took 
pleasure in the excursions made necessary, when he 
accompanied juries to try cases upon view of the land 
involved, and the memory of the loveliness of the Catoc- 
tin Mountain, seen when he was upon such expedi- 
tions, remained ever with him. Mrs. Taney partici- 
pated in this love of nature, and both of them greatly 
enjoyed the visits they paid with their children to her 
bachelor cousin, Arthur Shaaff, the lawyer, at his 
country seat, Arcadia, a few miles from Frederick. Both 
the husband and wife were "passionately fond of 
flowers," and Taney "always thought well of one who 
liked them." 18 In a letter from Washington to his 
wife on April 1, 1850, he mentioned that he found "the 
hyacinths in bloom in the Capitol grounds and walked 
about them alone, after the Court adjourned, to en- 
joy the marks of the opening spring." 

After Taney's death, the Rev. Dr. Clover, an Epis- 
copal clergyman, paid Mrs. Taney this tribute: 19 "Mrs. 
Taney was a woman of a noble and cultivated mind, 
of deep religious convictions, and of a truly catholic 
spirit. Courted by the influential, the affluent, and 
the fashionable, she cast aside the pleasures and attrac- 
tions of the world, that she might the more fully and 
freely devote her life to the Saviour. From many an 
abode of virtuous poverty in the City of Baltimore, 
the prayer of gratitude has gone up in her behalf to 
heaven. One of the most unselfish women I have 
ever known, her life was a beautiful exemplification, 

17 Tyler, p. 103. 

18 Jas. Mason Campbell to Tyler, November 4, 1864. Tyler, p. 470. 

19 Tyler, p. 469. 



ROGER BROOKE TANEY 49 

not only of active benevolence, but of that spirit of 
true charity so admirably depicted by the Apostle 
Paul." William Schley, who had known her from his 
childhood, also bore testimony 20 to her being "em- 
phatically the friend of the poor — a kind neighbor, a 
true friend, and an exemplary Christian." 

Tyler tells us that 21 "The Chief Justice and Mrs. 
Taney seemed to be made for each other. The two 
made their home all but perfect in parental love and 
filial piety." He had been an intimate friend of the 
family and had been given to read the letters from 
Taney to his wife, through a period of nearly fifty 
years. These letters enabled Tyler to write with the 
greater confidence of the "singular purity and felicity 
of the private life which these letters reveal." 22 She 
"was a woman of high intelligence as well as culti- 
vation," and so was in every way a fit mate for her 
husband. 

In the letter we have already quoted, Taney wrote 
with tender solicitude, 23 "Having just left you all, 
my room is lonely and sad today, and I feel much more 
disposed to lie down and think of you all at home than 
do anything else. This bright weather will, I hope, 
continue, and enable you to exercise and be more in the 
open air. How glad I should be to walk with you." 

Nearly two years later, he wrote her, on January 7. 
1852, a letter so charming as to deserve quotation in full : 24 

I cannot, my dearest wife, suffer the 7th. of January to pass 
without renewing to you the pledges of love which I made to you 
on the 7th. of January, forty-six years ago. And, although I 

20 Proceedings of Baltimore Bar in honor of Taney, October 14, 1864. 

21 Tyler, p. 470. 

22 Tyler, p. 472. 

23 Tyler, p. 471. 

24 Tyler, p. 316. 



50 ROGER BROOKE TANEY 

am sensible that, in that long period, I have done many things 
that I ought not to have done, and have left undone many things 
which I ought to have done, yet in constant affection to you I have 
never wavered — never being insensible how much I owe to you — 
and now pledge you again a love as true and sincere, as that I 
offered you on the 7th. of January, 1806, and shall ever be your 
affectionate husband. 

R. B. Taney. 

In September, 1855, while Taney was spending the 
summer at Old Point Comfort, where he had begun his 
autobiography, both Mrs. Taney and an unmarried 
daughter, Alice, sickened with yellow fever and died. 25 
A few days afterwards, Father McElroy 26 called on 
him in Baltimore. In his visitor's words: "He was 
very much crushed and broken in spirits, after such a 
severe bereavement, as might be expected. He re- 
ceived me, however, with his usual kindness and cour- 
tesy. During my visit, a gentleman, with his car- 
riage, sent to let Mr. Taney know that he came expressly 
to give him a little airing in a drive to the country for 
an hour or two. He sent for answer that he must de- 
cline his kind offer; and, then turning to me, he said: 
'The truth is, Father, that I have resolved that my 
first visit should be to the Cathedral, to invoke strength 
and Grace from God, to be resigned to his holy will, 
by approaching the altar and receiving holy commun- 
ion — preceded of course by confession.' " 

A year later, Taney wrote 27 to his cousin, Ethelbert 
Taney, who was a farmer living near Hancock, Mary- 
land, to thank him for a letter of sympathy and said: 

I have indeed passed through most painful scenes, and have 
not yet gained sufficient composure to attend to business. But 

26 Tyler, p. 474. 
"Tyler, p. 477. 
* 7 October 22, 1855. Tyler, p. 473. 



ROGER BROOKE TANEY 51 

it has pleased God mercifully to support me through this visitation, 
and to recall my bewildered thoughts and enable me to feel this 
chastisement comes from him and that it is my duty to submit to 
it with calmness and resignation. And I do not doubt that, 
severe as the trial is to those who survive it, it is, in the mysterious 
ways of Providence, introduced in justice and mercy to the living 

and the dead My age and my feeble health put it 

out of my power to accept your kind invitation to visit you. 
. My health has suffered from this shock and, at my 
time of life, I can hardly hope that it will be much better. My 
great duty is to prepare myself for that change which soon must 
come; and I trust that I shall mercifully be enabled to do so. 

Taney's mother left her home during the War of 
1812, to avoid danger from British incursions, and made 
her home with her son, until her death in the latter 
part of 1814. 28 The War of 1812 had another associa- 
tion with Taney, in the immortal verses written by 
Francis Scott Key, of which Taney's account, printed 
in the volume of collected poems by his brother-in- 
law, gives the most authentic account. 29 

Taney's father outlived his mother, and about 1819, 30 
in a quarrel, stabbed and killed a neighbor, John Ma- 
gruder. The old gentleman was indicted for manslaugh- 
ter, but fled to Virginia, where he lived in seclusion, in 
Loudon County for several years, until he was killed 
by a fall from a horse. Two faithful slaves had accom- 
panied him across the Potomac, and they brought 
his body home for burial in the family graveyard. The 
tradition of the neighborhood says that Magruder's 
brother disinterred the remains, and, when he had 

28 Tyler, p. 143. 

29 Reprinted in Tyler, pp. 109-1 19. Taney wrote that he felt a "melancholy 
pleasure in recalling events connected" with the "life of one with whom I was 
so long and so closely united in friendship and affection, and whom I so much 
admired for his brilliant genius and loved for his many virtues." 

30 13 Md. Hist. Mag. 130. 



52 ROGER BROOKE TANEY 

opened the coffin, and assured himself that it contained 
the body of Michael Taney, in his fiendish rage, he 
battered the face with a stone. 

In the life of the little town of Frederick, Taney took 
a prominent part. In 1818, he was named as one of 
the first Board of Directors of the newly chartered 
Frederick County Bank, and he rarely missed a meet- 
ing, during the several years in which he served as 
Director. On October 30, 1802, he was appointed a 
visitor of the Frederick Academy, and continued to 
serve as a member of the Board, until his resignation 
on February 1, 1822, during which period of twenty 
years, he was absent from only one or two meetings of 
the Visitors. 31 During his term as Visitor, his successor 
as Chief Justice, Salmon P. Chase, then a young New 
England College graduate, applied for the Principal- 
ship, and failing to obtain the desired position, went 
to Ohio, with results known to all. 

One of Taney's intimate friends during this period, 
was Virgil Maxey of Anne Arundel County. Two of 
Taney's letters to him are preserved in the New York 
Public Library. One of these letters, without a date, 
speaks of an illness from which the writer was recover- 
ing and of a hoped for visit later. In the other letter, 
written on October 21, 1822, Taney speaks of the great 
anxiety felt at Frederick, because of many ill people. 
Taney was better, "yet, from my window, I can see 
the faded leaves falling from the trees, and have no 
reason to suppose that my hold of life is much firmer 
than these." 32 Taney's melancholy prognostications 

31 Tyler, p. 103. 

32 He inquired concerning Mrs. Maxey's health, transmitted Mrs. Taney's 
message of love to her and Mrs. Galloway, and spoke of the calamity experi- 
enced through the recent death of John Eager Howard, who "was greatly 
esteemed and respected." 



ROGER BROOKE TANEY 53 

were far from correct, for he had over forty years of 
life before him. 

To young lawyers, Taney was especially helpful. 33 
William Schley, born in Frederick, and in his mature 
life, a prominent lawyer in Baltimore, in his remarks 
made at the memorial meeting of the Bar, after Taney's 
death, spoke of having known him from early child- 
hood: "As a boy, as a youth, 34 and, afterwards, as a 
student of law, I heard him very often in cases of mag- 
nitude in the Court of Frederick, and his arguments 
and his manner made a deep impression upon me. 
He sought no aid from rules of rhetoric, none from the 
supposed graces of elocution. I do not remember to 
have heard him at any time, make a single quotation 
from any of the poets. Yet his language was always 
chaste and classical, and his eloquence undoubtedly 
was great — sometimes persuasive and gentle, some- 
times impetuous and overwhelming. He spoke, when 
excited, from the feelings of his heart, and, as his heart 
was right, he spoke with prodigious effect. And yet, 
perhaps above all other attributes, his exalted private 
character gave him with the honest, right minded 
juries of Frederick County, an extent of success which 
even his great abilities as an advocate would not have 
enabled him otherwise to secure. He had acquired, 
and he ever retained it, in an eminent degree, the con- 
fidence and respect of that community. The people 
knew that he was sincere and honest; they knew that 
he was a composer of strifes and controversies, when- 
ever the opportunity was afforded, and that he never 
promoted any; and they also knew that, whilst he was 
was earnest, strenuous, and indefatigable in his efforts 

33 Vide James Dixon's letter. Tyler, p. 251. 

34 Tyler, p. 139. 



54 ROGER BROOKE TANEY 

to secure for his clients their full rights, yet he never 
sought to gain from the other party any unjust advan- 
tage. He was an open and fair practitioner. He never 
entrapped the opposing counsel by any of the ma- 
noeuvres of an artful attorney; and he contemned, 
above all things, the low tricks of the pettifogger. In 
taking exception to the adverse rulings of the Court, 
he never cloaked a point, but presented it fairly and 
distinctly for the adjudication of the Court." 

Tyler 35 refers to several incidents illustrating his 
characteristic friendship for young lawyers. For ex- 
ample, William Ross had recently become admitted 
to the Frederick Bar, having settled in the town in 
1805. He was employed in an ejectment suit in which 
Taney was the opposing counsel. The case stood 
next in trial and the Court asked if Ross was ready. 
He answered "Yes," but Taney whispered to him 
"that his locations were all wrong; and that, if he went 
to trial, he must lose his case, whether the right were 
with him, or not. Thereupon Mr. Ross had his case 
continued," and he never forgot this courtesy. So, 
when Joseph M. Palmer came from Connecticut to 
practice law in Frederick, in 1817, a client of Taney's 
mentioned to him his case and reported to Taney the 
opinion the "Yankee lawyer" expressed as to it. "Mr. 
Taney saw the force of Mr. Palmer's view, which dif- 
fered from the one he held, and, at once, sent for Mr. 
Palmer and employed him in the case, to help him for- 
ward in his profession." Again, Mr. William Price, 
who had been engaged often as junior counsel to Taney, 
thus spoke of him: "But few men of his eminence have 
ever displayed so much kindness to the younger members 
of the profession. Often have I left his rooms after 

36 Tyler, pp. 137-139. 



ROGER BROOKE TANEY 55 

midnight, having gone through the authorities and 
settled the points to be made at the trial, and always 
believed that I was a better lawyer for the interview; 
for he never kept back from his young associate a single 
thought that occurred to his mind during the investi- 
gations. In a case of difficulty, he would tarry to 
explain the law and usually made it so plain that no 
man could well fail to understand it. After our labors 
were finished, he would invite me to remain and to 
talk with him, for, although his dignity was a part of 
his nature, yet he was one of the most genial persons 
I ever knew." 

It is not known where Taney resided when he first 
came to Frederick. His name first appears on the 
County Land Records in 1813, in connection with those 
of Arthur Shaaff and Francis Scott Key, as one of the 
trustees, under the will of General James Lingan of 
Montgomery County, a Revolutionary veteran, and 
an ardent Federalist, who was murdered in the Balti- 
more Riots of 1812. 36 For most of the Frederick por- 
tion of Taney's life, he and his family occupied a small 
frame house still standing on Bentz street, at the south- 
western edge of the town. This property, a modest 
home, for a successful lawyer, he bought for $3200, in 
June 1813, and sold it for $1500, when he left Frederick. 37 

Mr. Justice Wayne, in his eulogy of Taney, 38 said 
that he freed his inherited slaves, "aided them in their 
employments, and took care of them, when they were 
in want. He often said that they were grateful and 
they had never caused him a moment's regret for what 
he had done." 

36 13 Md. Hist. Mag., p. 130. 

37 A lot on Church Street was the only other land he owned in Frederick, 
while living there, 13 Md. Hist. Mag., p. 130. 

38 2 Wallace X. 



56 ROGER BROOKE TANEY 

On November 29, 1817, a free negro bound himself 
as a slave to Taney and to Frederick A. Schley, who 
was reading law in Taney's office, "upon the considera- 
tion that they would shelter and feed him, with the 
provision that, if the negro paid" a note to Wood- 
ward Evitt for $350, for which note Taney and Schley 
were securities, the indenture should be void. On 
the same day, Evitt sold Taney and Schley the negro's 
wife for $350, and they later manumitted her. It is 
an interesting transaction, showing Taney's desire to 
keep man and wife together, and to help a man buy his 
wife's liberty. 39 In 1805, Taney was taxed as owner 
of a female slave — probably his cook — and two others 
(doubtless her children) under the age of fourteen 
years. In 1818, he set seven negroes free, and, subse- 
quently, together with his brother, Octavius Taney, 
he liberated two slaves, who had been owned by his 
father. Still later, in 1821, he manumitted another 
slave. 

Taney did not leave his love for politics, nor his 
devotion to Federalism behind him, when he removed 
to Frederick County. In 1803, 40 he became a can- 
didate, together with John Hanson Thomas and two 
others, on the Federalist ticket for the House of Dele- 
gates. The election was the first one in Maryland at 
which ballots were used, and was also the first one after 
the abolition of the property qualification for the suf- 
frage, and the disfranchisement of the few negroes who 
had voted by virtue of their ownership of property, 
since, by a Constitutional Amendment, race had been 
substituted for property as the qualification for suffrage. 
Only the Sheriff, members of the House of Delegates, 

39 13 Md. Hist. Mag., p. 131. 

40 Tyler, p. 100; 13 Md. Hist. Mag., p. 123. 



ROGER BROOKE TANEY 57 

and Electors for the State Senate were voted for at 
that time. Frederick County had a Jeffersonian Re- 
publican majority of voters, and Taney was defeated, 
but he canvassed the county vigorously, and his speeches 
made a deep impression. The campaign was one of 
barbecues. Taney and another Federalist candidate — 
nicknamed as "Little Sancho" — were permitted to 
engage in joint debate at the Republican barbecue in 
Middletown, at which 600 people partook of meat, 
bread, and whiskey, and at the one at Westminster, 
where 1000 people (including 100 women), were 
present. Taney marched into Frederick at the head of 
a cavalcade from a Federalist barbecue. The campaign 
degenerated into an appeal to prejudice against the 
Federalist "aristocrats," on the part of the Republican 
"plain people." The "Republicans' Advocate" attacked 
Taney as having been "fairly laughed out of Calvert 
County as an aristocrat," and alleged that he "ranted 
and was incoherent" in his speeches." Mr. Taney, 
it said, "owes it to the people of this county to give 
some account of himself, before he goes spouting — be- 
fore he accuses others, let him tell the people who he 
is. What do the people of Frederick County know of 
Roger B. Taney? Why does he not tell the people 
how Dr. Kent saved him?" 41 The Republicans also 
attacked Charles Carroll of Carrollton, "that hoary 
headed aristocrat, " who had "gone down to the Manor, 
no doubt with a view to influence the tenants on the 
place. Shall the people be dictated to by this lordly 
nabob, because he has more pelf than some others?" 42 
In 1808, together with David Lynn of Allegany 
County, Taney became a candidate for Presidential 

41 1 cannot explain this allusion. 

42 The total vote cast was 4,841, and Taney polled 2,120. 



58 ROGER BROOKE TANEY 

Elector from the Western Maryland district, for the 
State did not then choose electors on a general ticket. 
They were defeated by Dr. John Tyler of Frederick, and 
Nathaniel Rochester (the founder of the New York 
City named for him) of Hagerstown, but the Republi- 
can majority in Frederick County was reduced to 30. 43 
The Federalist candidates for the House of Delegates, 
including John Hanson Thomas, carried the County. 44 

The War of 1812 led to a split in the Federal party in 
Frederick County, and to a break in the friendship of 
Taney with John Hanson Thomas. The broken friend- 
ship was not renewed, until Thomas lay on his death- 
bed and, as he and his family had been of essential 
service to Taney on his first settlement in Frederick, 
the charge of ingratitude was long urged against him. 45 
Taney gave his support to the national government, 
as soon as war was declared, and many other Federal- 
ists in Frederick County did the same. For some 
reason, these men were nicknamed Coodies, and Taney, 
because of his influence over them, was called King 
Coody. Thomas led the wing of the party which re- 
fused to support President Madison. While the divi- 
sion in the party was at its height, 46 Taney was nomi- 
nated by his friends for a seat in the House of Repre- 
sentatives, and, notwithstanding the great strength of 
the Republican party in the district, was defeated in 
the Congressional election by only 300 majority. 

In May 1815, John Hanson Thomas died. 47 Shortly 
before his death, "memories of their early friendship 
and the great qualities of Mr. Taney, came before his 

43 The figures were 2,471 and 2,341. 

44 13 Md. Hist. Mag., p. 125. 

45 13 Md. Hist. Mag., p. 126; Tyler, p. 106. 

46 Tyler, p. 119. 

47 Tyler, p. 107. 



ROGER BROOKE TANEY 59 

magnanimous soul," and he sent for Taney, "who 
hastened to the bedside of his rival, and gave him a 
greeting, so generous and so tender, that their recon- 
ciliation was consecrated by mutual tears." 

In the next year, 1816, Taney was chosen an Elector 
for the Senate of Maryland from Frederick County. 
Each of the nineteen counties chose two members of 
this college, and the cities of Baltimore and Annapolis 
each chose one. The forty members of the College 
selected, from their own number or not, as they pleased, 
15 Senators to serve for five years. 

The Electoral College convened on September 6, 
chose Taney as chairman of its committee on creden- 
tials, 48 and, subsequently, elected him as Senator, by a 
vote of 28 to 12. Though he preferred professional 
life, he yielded to the desire of his friends, and, in after 
life, "always talked of his service in" the Senate "with 
singular pleasure." The Senate's session began on 
December 4, and, two days later, Taney appeared at 
its meetings. He was one of the tellers of the vote for 
Governor's council, and for the United States Senator, 
and, on January 2, after the Christmas recess, 
reported resolves condemning Congressional Presidential 
Caucuses. 49 

48 Tyler,p. 120. Vide Van Santvoord's "Lives of the Chief Justices," p. 539. 
Van Santvoord speaks of Taney's "habitual reluctance to speak of himself or 
of his acts," and of his looking back on his service "in the Senate with more 
satisfaction and pleasure than to any other" one. 

49 On January 18 he served on a committee upon a hospital and on January 
29 voted to remove Judge Zebulon Hollingsworth for intemperate habits and 
failure to give attendance on the Bench. He was excused from voting on Jan- 
uary 31 on an act for quieting possessions, and enrolling conveyances, on the 
ground that he had been consulted as to the law before his election. He offered 
resolves against altering roads without notice, and voted for popular election 
of Senators, for the suppression of duelling, and for the incorporation of the 
Potomac Company. He opposed charters for the Specie Bank of Leonardtown, 



60 ROGER BROOKE TANEY 

On December 5, 1817, Taney introduced a bill to 
regulate clerk's fees in chancery proceedings, and also 
one to prevent the circulation of bank notes of a value 
less than a dollar. In the latter measure, appeared the 
same love for hard money which he showed later in 
national affairs. 50 

The session of December 1818, 51 saw Taney chairman 
of Committees which introduced bills to prevent the 
passage of bank notes below their nominal value, to 
regulate the manner of obtaining and altering roads, 
to regulate the admission of attorneys, and to relieve 
Phoebe Cresap. 52 

He did not come to the session of December, 1819, 
until January 17, 1820. 53 Two days later, he voted 

the Dorchester Bank, and the Warren Manufacturing Company, as well as a 
constitutional amendment as to the attorney generalship. He was excused 
from voting on the bill to incorporate the Moravian Church at Graceham in 
Frederick County and on the proposal to pay money to the widow of J. H. 
Stone. 

50 He was chairman of a committee upon such a bill on January 30, 1821. 

51 On January 22 he voted for bills to grant charters to the Bank of Dor- 
chester and the Frederick County Bank, and to regulate the manner of opening 
and altering roads, and he introduced a bill to have the Western Boundary of 
the State settled. He voted for a constitutional amendment as to the election 
of Governor on January 26, for a bill to incorporate the Grand Lodge of Masons 
on February 2, and for another bill to regulate lotteries for a hospital on Feb- 
ruary 10 and 16; but he opposed the incorporation of the turnpike in Mont- 
gomery, Frederick and Washington Counties, and of an academy at Liberty- 
town, as well as the establishment of a Branch Loan office for the Eastern 
Shore on February 1 1 . He voted against an insolvency bill and one concerning 
attachments. He served as Chairman of a conference committee upon a State 
loan, and reported a bill to incorporate the Washington and Baltimore Coal 
Company. 

62 January 14. 

63 He introduced a bill to incorporate an academy at Libertytown in Fred- 
erick County, and took an active part in the debate on a bill to regulate the 
incorporation of banks. On February 6, he voted against incorporating a 
bank at Oldtown. He favored the bill for the Maryland Hospital, and for 
the benefit of the Baltimore Roman Catholic Congregation. He voted for 



ROGER BROOKE TANEY 61 

against a resolution stating that the powers of Con- 
gress are derived immediately from the people, and not 
the States in their corporate capacity, therefore, that 
the members of Congress from Maryland should not 
be instructed by the Maryland legislature upon the 
proposed Missouri compromise. He also voted against 
a resolution, stating that the members of Congress 
should use their utmost endeavor to prevent the pro- 
hibition of slavery from being required of Missouri as 
a condition of admission. It is curious that Taney, 
who decreed the Missouri Compromise to be unconsti- 
tutional, should have voted on certain features of the 
measure, while it was pending, and it is also interesting 
that these votes were reported to Henry Clay and that 
the knowledge was used by him in an attack upon 
Taney in the United States Senate. 

His last session was that of December, 1820. 54 He 
then showed his interest in insolvent imprisoned debt- 
ors, for such imprisonment had not as yet been abolished 
in Maryland. He was absent much of the time during 
this session. 55 When present, he voted not to repeal 
the law prohibiting the importation of slaves into the 

the Surgical Institute Lottery on February 18. He served on the joint com- 
mittee to examine records in the land office, and voted, on February 6, for a 
bill to alter the method of electing the Senate, but against a bill amending the 
act to direct descents, against incorporating a company for a bridge over the 
Nanticoke River, against an Annapolis street bill, and against an act relating 
to negroes. 

54 He voted against incorporating the Lodge of Masons in Salisbury on Jan- 
uary 28, against a resolve for a medical college, and against amendments to 
the testamentary law. He was interested in the attempt which Maryland was 
vainly making to secure a portion of the National public lands for educational 
purposes. On January 30, 1821, he again showed interest in that subject. 
He was also interested in a bill concerning executions, favored the prohibition 
of cockfighting and gaming, and the grant of a lottery for the University of 
Maryland. (So again on February 18, 1821.) 

55 He arrived on December 11. 



62 ROGER BROOKE TANEY 

State. Bills 56 met his favor concerning habitual drunk- 
ards 57 and to discourage drunkenness by preventing the 
recovery of small debts contracted to pay for ardent 
spirits. 

This term of service ended Taney's legislative career. 
His Senatorial achievement was creditable, but not 
distinguished, nor did it fulfil the promise of his term 
as Delegate. One can hardly help feeling that his 
mind was not greatly occupied with legislative matters, 
but was probably largely occupied by legal ones. 

We have left the discussion of Taney's legal career, 
while practising at the Frederick bar, until the end of 
this chapter; although, in truth, such affairs appear to 
have taken his best energies and most of his time. John 
Thompson Mason and Arthur Shaaff had been the 
leaders of the Frederick Bar, and of these Mason had 
recently retired from active practice, and settled in 
Washington County, while Shaaff, though continuing 
to practice before the Frederick Court, had removed 
to Annapolis. He gave efficient aid to Taney in the 
early years of his Frederick residence. The latter's 
friendships with Key and Thomas were also of great 
value to him. The Fredericktown Herald for March 
10, 1804, shows these four men, all Federalists, offering 
their legal services to a man who was prosecuted by 
Samuel Hughes, in a case in which Roger Nelson, the 
Democratic leader, was supposed to have been behind 
Hughes. 

Taney's practice "literally grew by leaps and 
bounds." 58 At the February term of 1802, he appeared 
in five or six suits in the Frederick County Court; at 

66 He presented reports of Academies, Banks, etc. 

w Jan. 30. 

58 13 Md. Hist. Mag., p. 119. 



ROGER BROOKE TANEY 63 

the following term in August, in about two dozen; and 
at the February term of 1803, in between thirty and 
forty cases. From that time, and until his removal 
from Frederick, he appeared in a majority of cases, 
heard in that Court. His practice, however, was not 
confined to the County of his residence. As early as 
1801, he was retained in two lawsuits in Hagerstown, 
the county seat of Washington County, which adjoined 
Frederick on the west. 59 Either of the suits involved 
an amount exceeding £277 Maryland currency, in 
which £1 was equal to $2.66f. These cases were 
brought up for trial at the August term of 1803, and, 
though Taney lost both of them, he won two other 
suits at the same term, in which he appeared as coun- 
sel. From that time, until his removal to Baltimore, 
Taney frequently journeyed over the Catoctin, or 
South Mountain, to participate in litigation at Hagers- 
town, and he took part in a dozen or more causes at 
every term of the Washington County Court. 

Before Taney was thirty years of age, he had appeared 
several times in the Court of Appeals, the highest tri- 
bunal of the State. His first appearance there was due 
to Mr. Shaaff, as his first appearance in the Frederick 
Court had been; for, at the October term of 1805, after 
he had been practicing for four years in Frederick, he 
assisted Messrs. Shaaff and Robert Goodloe Harper in 
the argument of an important action of ejectment, 
instituted in 1801 by Luther Martin, Attorney General 
of the State, who was supported by Mr. Dorsey and 
Philip Barton Key. The suit involved the rights of 
the State, succeeding to those of the Lord Proprietary, 
and obtained by him from the Royal Charter. The 
case was reargued during the June term of 1806, and 

69 13 Md Hist. Mag., p. 120. 



64 ROGER BROOKE TANEY 

was decided against Shaaff and Taney; but the defeat 
was one suffered against a brilliant array of lawyers; 
for, besides those who had argued with Martin in the 
preceding year, John Thompson Mason, who had been 
appointed Martin's successor in July, 1806, and John 
Johnson, who succeeded Mason in the following Octo- 
ber, were added. 60 

At the 1806 term of the Court of Appeals, Taney 
appeared in another case, in which he was asociated 
with Francis Scott Key. The case involved a question 
of dower, in which Taney's client had succeeded in the 
Frederick County Court; but Shaaff and Brooks, who 
had instituted the suit in behalf of a widow, secured a 
reversal by the Court of Appeals of the result in the 
Court below. 61 

In 1807, he did not appear before this Court, but, 
in 1808, his name appears as counsel in four cases. In 
one of these, he assisted Shaaff — a case coming from the 
Court of Chancery, and involving a bill for reconvey- 
ance of land filed in 1801, by John Johnson, Thomas 
Buchanan, and Luther Martin. The judgment in 
the Court of Chancery had been for the complainant, 
and, on the appeal, he was also successful, although 
Shaaff and Taney were joined by Ridgely and Philip 
Barton Key for the appellant. 62 

The other three cases were not of great importance, 
and it is interesting to observe that, in all of them, 
Taney and Shaaff were opposing counsel. 

In one of these suits, Taney and Key were associated 
in an action for slander in which they represented 
the defendant. 63 In this case, they were fortunate, 

60 13 Md. Hist Mag., p. 120. Howard v. Moale, 2 H. & J. 218. 

61 No briefs were filled. Keefer v. Young, 2 H. & J. 45. 

62 Bogden v. Walker, 2 H. & J. 248. 13 Md. Hist. Mag., p. 121. 

63 Sheely v. Briggs, 2 H. & J. 311, 363. 



ROGER BROOKE TANEY 65 

and succeeded in obtaining a reversal of a judgment 
secured in the Frederick County Court, for £ 22 against 
their client. 

In the other two cases, Taney and Shaaff faced 
each other without associates. As Delaplaine writes: 
''Taney is no longer Mr. Shaaff's apprentice." 64 One 
of these suits was an appeal from the Frederick County 
Orphans' Court, which had admitted to probate a 
paper, designed to take effect as a will upon the hap- 
pening of a certain contingency. Taney cited authori- 
ties to prove that the paper was void, since the contin- 
gency did not occur, and won the suit. 65 The other 
action was one of assumpsit, instituted by Taney at 
Frederick, 66 to recover against an estate for a year's 
service rendered as overseer in 1791, in which attempt 
Taney was successful. 

Taney's first criminal case before the Court of Appeals, 
was one in which he defended a negro, Thomas Burk, 
charged with committing rape upon a white girl, Cath- 
erine Maria Brawner, under twelve years of age. The 
Grand Jury of Frederick County found an indictment 
in the case, in February, 1809, 67 but the case was removed 
to Hagerstown, where the negro was found guilty, and 
sentenced to be hanged. Taney and his associates, 
Messrs. Lawrence and Martin, moved for an arrest of 
judgment, and, when this was refused them, brought 
the proceedings before the Court of Appeals by writ of 
error. The counsel for the defence had made a care- 
ful study of the case and nearly one hundred of their 
authorities — a remarkably large number for so early a 

64 13 Md. Hist. Mag., p. 123. 

65 Wagner v. McDonald, 2 H. & J. 346. 

66 Cushman v. Sims, 2 H. & J. 352. 

"2 Scharf's Western Md. 1108. 13 Md. Hist. Mag., p. 132. Burk v. 
State, 2 H. & J. 426. 



66 ROGER BROOKE TANEY 

case — are cited in the Reports. The Court decided in 
favor of the State, but the negro escaped hanging by 
escaping from the Washington County jail, on July 4, 
1809. 

Taney's other appearance in Annapolis in 1809 was 
with Shaaff, in an action for dower, which they lost, 
Luther Martin being the opposing counsel. 

In 1810, Taney's only appearance before the Court 
of Appeals, was in an action for slander. 68 The suit 
had been filed by Philip Barton Key in the County 
Court at Rockville, Montgomery County, adjacent 
to Frederick, and Taney, endeavoring to escape the 
trouble of drawing up the pleadings, merely filed a 
plea of justification short, under an agreement with 
Key that the plaintiff would consent to waive his rights 
in the matter of formal pleading. A verdict for the 
defendant, Taney's client, was given in the nisi prius 
court; but, on appeal, Chief Justice Jeremiah Townley 
Chase, Taney's former preceptor, rendered an opinion 
reversing the verdict, briefly stating that "the plea of 
justification is not sufficiently pleaded, being put in 
short, and upon that ground the Court reverse the 
judgment." It is almost the only censure recorded 
upon Taney's diligence. 

Four cases were argued before the Court of Appeals 
by Taney in 1811, arising in four different counties, a 
fact which shows how his practice was spreading. He 
lost three of them; an attachment case from his native 
County, Calvert; 69 a suit brought on an assumpsit 
in Washington County, 70 and an action for debt arising 

68 13 Md. Hist. Mag., p. 118. Orme v. Lodge, 3 H. & J. 83. 

69 Fitzhugh v. Hellen. He and Dorsey opposed Thomas Buchanan and 
Magruder, 3 H. & J. 206. 

70 13 Md. Hist. Mag., p. 129. The facts in the Washington County Case 
were these: Samuel Ringgold had made a promissory note for $2,500 in 1801, 



ROGER BROOKE TANEY 67 

in Frederick from a lottery drawing. 71 His success 
came in an action for assumpsit, brought in Montgom- 
ery County. 72 

In 1811, Taney did not appear in the Court of Ap- 
peals, 73 but, in that year, he was retained, together 
with John Hanson Thomas, to defend General James 
Wilkinson in a court martial held in Frederick. 74 Wil- 
kinson, who had been Commander-in-Chief of the 
United States Army, was accused of having been an 
accomplice of Burr, in his western conspiracy. He 
was a native of Calvert County, like Taney, having 
been born there in 1757. He too had settled in Freder- 
ick County, practicing medicine along the Potomac, 
and residing between Point of Rocks and the mouth of 
the Monocacy River. He had served in the Revolu- 
tionary War, with credit, but was rightly regarded as 
an unreliable and untrustworthy man. Both Thomas 
and Taney had shared in the general belief that Wil- 
kinson had been treacherous both to the country, and 

and the note had been subsequently endorsed. The endorsee instituted an 
action of assumpsit, and obtained a verdict in Hagerstown. Ringgold's counsel 
moved on arrest of judgment, on the ground that the note did not contain the 
words or order, or to bearer, and was, therefore, not a negotiable instrument, 
hence the endorsee could not sue in his own name. The Court of Appeals held 
that the defendant's contention was correct, and Taney lost the case, which 
is one of his earliest in commercial law and banking, a class of cases in which 
he always took a great interest. Noland v. Ringgold, 3 H. & J. 216. He was 
associated with W. Dorsey and opposed by Thomas Buchanan. 

71 State v. Wolfe, 3 H. & J. 224. Taney was associated with Brooke, and 
opposed by Warfield. 

72 Lodge v. Boone, 3 H. & J. 218. Francis Scott Key opposed him. 

73 The New York Public Library possesses a letter from him, dated May 15, 
1811, concerning the preparation of a deed, for Ignatius Davis. 

74 Wilkinson, with characteristic neglect, treats of this trial at considerable 
length in volume 2 of his Memoirs, but does not name his counsel. Vide 13 
Md. Hist. Mag., p. 134, and Tyler, p. 104, which treat of Taney's part in the 
trial. 



68 ROGER BROOKE TANEY 

later to Burr; but, after studying the evidence care- 
fully, they concluded that they had done Wilkinson an 
injustice, so that, for nearly four months, they labored 
assiduously in his defence, and refused to accept any 
fee for their professional services. Walter Jones, an 
able and subtle lawyer, who had a large practice before 
the United States Supreme Court, acted as Judge Ad- 
vocate, and the Court, composed of thirteen high mili- 
tary officers, sat in Frederick, from early in September, 
1811, until Christmas Day, when it adjourned with a 
verdict of acquittal. The result was a considerable 
triumph for Thomas and Taney. Madison, in his 
order concerning the decision, wrote: 

Although I have observed in those proceedings, with regret, 
that there are instances in the conduct of the Court, as well as 
of the officer on trial, evidently and justly objectionable, his 
acquittal of the several charges against him is approved, and his 
sword is accordingly ordered to be restored. 75 

In 1813, Taney had two unimportant cases before the 
Court of Appeals, which he won, and an important 
one, which he lost. The two former were concerned 
with opening a road, 76 and trespass in carrying away 
fence rails. 77 The latter was an action of ejectment, 
an appeal from the Washington County Court, dealing 
with the land of Jonathan Hager, the founder of Hagers- 
town. 78 A remarkable array of counsel appeared in 
this case: Luther Martin, William Pinkney, then Attor- 

75 4 So. Lit. Mess, 348. An anonymous writer in 1838 stated that Wilkin- 
son was particularly unpopular in Frederick, where he had successfully prose- 
cuted an old and poor Revolutionary veteran. 

76 Greenwood v. Stone. 3 H. & J. 435. 

77 Gibson v. Kephart, 3 H. & J. 439. Brooke against Taney. 
78 Lawrence v. Heister, 3 H. & J. 371. 



ROGER BROOKE TANEY 69 

ney General of the United States, and Mason, opposing 
Key, Shaaff, and Taney. 79 

Tyler informs us that it was Taney's "habit to ad- 
vise his clients to settle their disputes amicably," in all 
cases where he thought "this settlement could be ac- 
complished." In 1813, a dispute between two former 
business partners in Frederick, led to acrimonious news- 
paper controversy. 80 The matter was referred by 
both parties to Taney as their counsel, and he arranged 
the difficulty amicably, closing the controversy by a 
written opinion, in which he stated: 

There is nothing in the settlement that can impeach the integ- 
rity, or impair the reputation of either of you. My opinion was 
not given, on the ground that one has right, and the other has 

79 Tyler, p. 122, gives an account of another ejectment case at Hagerstown, 
in which Martin and Taney, then "a comparatively young man," were opposed 
to Shaaff. Martin had been very skilful, in the use of "the most subtle prin- 
ciples and the most complex forms of pleading in actions of ejectment." Taney 
had to study this case and prepare it for trial, without Martin's aid, but they 
finally started together for Hagerstown by stage coach, on the day before the 
trial. The distance is 26 miles, and every five miles, when horses were changed, 
"Martin drank at the tavern — whiskey, when he could get it, and, when he 
could not, he drank ale, and, when he could get neither, he drank buttermilk." 
On arriving at Hagerstown, they took supper together, and Taney told Martin 
that, after smoking a cigar and resting, "he would come to his room, and go 
over the case with him." At eleven o'clock, he found Martin in his room lying 
across the bed with his hat on, and dressed in all his clothes, except one boot, 
"asleep from his various potations." He called Martin in vain, and then, 
"much disturbed, but not daunted, he retired to his room, and studied the case 
until nearly day," to be ready to meet Shaaff's technicalities. In the morn- 
ing, Taney called at Martin's room, but found the door locked and went to Court 
alone, fearing that Martin would not be in Court. Just as the case was called, 
Martin came in, and Taney told Tyler that, "in none of his forensic efforts, did 
he excel his skill in the management of this cause." Both he and Mr. Shaaff 
"showed the most extraordinary ingenuity, respectively, in bringing before the 
jury and in refuting evidences of the changes that the location of a spring of 
water might have undergone, which spring's situation would determine the 
disputed boundary." 

80 George Graff and Richard Lee Head. Tyler, p. 136. 



70 ROGER BROOKE TANEY 

wrong, on his side. Your differences had placed the partnership 
property in a very perplexing situation to both of you; and the set- 
tlement was made, not by arbitration, but by the agreement of 
yourselves in all the material points, on the principle of the mutual 
advantage to be derived from mutual concession. Tyler adds: 
By such delicate treatment of the feelings of both parties, he made 
those who had been mutual enemies, mutual friends. 81 

Taney argued 81 no cases before the Court of Appeals 
in 1814, but, in 1815, he appeared as counsel in no less 
than eight cases: Two of these cases were of ejectment, 
in both of which Taney was opposed to Luther Martin 
and was defeated. In an appeal from Frederick, 82 
Taney was associated with Key, Shaaff and Brooke, 
but in an ejectment suit 83 coming from Washington 
County, the two lawyers faced each other alone. 84 

His most important case during 1816, was an appeal 
from the decree of the Orphan's Court of Anne Arundel 
County, admitting to probate a paper which had not 
been completed. 85 In this case, the brilliant array of 

81 The Frederick newspapers for August 21, and September 8, 1813, announce 
that Taney and Thomas appear for the plaintiff, and Pigman for the defendant 
in the case of John Johnson v. Joshua Medtart, in which case a Habeas corpus 
de homine replegiando was sued out. 

82 Shields v. Miller, 4 H. & J. 1. 

83 Easton v. Snavely, 4 H. & J. 17. 

84 Taney also lost a suit for debt against a trustee for the sale of land in 
which he represented the defendant. (Brooke was the opposing attorney, 
Schell v. State, 3 H. & J. 539.) He won a case in which he represented the 
plaintiff, claiming fraud in the sale of an unsound slave (Duvall v. Medtart, 
4 H. & J. 14. Shaaff opposed him), and in a question of a warranty of a slave, 
which case arose in Montgomery County (Chilton v. Jones, 4 H. & J. 62), he 
argued for the defendant. He won two other unimportant cases from that 
county: of replevin for rent (Offutt v. Trail, 4 H. & J. 20), and on an adminis- 
tration bond, opposing Key in the latter case (State v. Wootton, 4 H. & J. 21). 
A case involving the obligation to support a bastard was also won by Taney, 
representing the father. (Grantz v. State, 4 H. & J. 121. Pigman was the 
opposing counsel.) 

85 13 Md. Hist. Mag., p. 127. Tilghman v. Steuart 4 H. & J., 156. The 
Library of Congress possesses a manuscript opinion of Taney, dated Nov. 27, 



ROGER BROOKE TANEY 71 

attorneys comprised Martin and Shaaff as Taney's 
associates in the endeavor to reverse the Orphan's 
Court, and Robert Goodloe Harper, Steuart and Pink- 
ney as their opponents. There was some question as 
to whether the deceased possessed the animus testandi, 
when the paper was written, and the case was one of 
moment; both because of the large amount of property 
involved, and because the law concerning the essentials 
of a will necessary to pass personal property, had not 
been settled by the Maryland Courts. The case was 
argued at two separate terms of the Court of Appeals, 
and each of the judges delivered a separate opinion; 
the decision, by a vote of 3 to 2, being in favor of 
Taney's contention, and reversing the decree of the 
Orphan's Court. 86 

In 1817, Taney won the two cases in which he ap- 
peared before the Appellate Court. One of these in- 
volved the rent of a plantation in Montgomery County, 87 
and the other was his first Baltimore City case, in 
which Harper made him his associate for the appel- 
lant, and won it against the strong combination of 
Martin, Winder, and Winchester. 88 

Taney did not believe in the adage that he who ar- 
gues his own case has a fool for a client, and, in 1818, 
appeared, in propria persona, in Taney vs. Kemp, 89 
and won his suit, an action for trover for a bill obliga- 

1815, given to D. Howard, attorney, to the effect that one Davis, who had 
leased a farm in trust for Deborah Pleasants in Montgomery County, had 
received sufficient notice to give up the farm, if his term had expired, no crop 
had been planted, and a month's notice had been given. 

86 Singstack v. Harding, 4 H. & J., 186. Shaaff opposed him and won. The 
case involved the price of land at an auction sale. 

87 Benson v. Hobbs, 4 H. & J. 285. 

88 Howard v. Rogers, 4 H. & J. 278. 

89 4 H. & J. 348. T. C. Worthington was the opposing counsel. 



72 ROGER BROOKE TANEY 

tory, in which a witness refused to answer a question 
put to him. 

Three victories and no defeat, was his record 90 in 
1819. The first of these, 91 involved an appeal from 
the Anne Arundel County Orphan's Court as to a 
widow's dower, and there was a remarkable array of 
counsel. Winder, Chapman, and Marriott opposing 
Pinkney, Taney, Magruder, and Stephen. The other 
cases were actions of assumpsit in one of which, 92 arising 
in Baltimore County, Martin and Taney opposed Pink- 
ney and Winder; and, in the other, arising in Prince 
George's County, Ridout and Taney faced each other 
without associates. 93 In the latter case, a son had 
given a note to his father, who indorsed it to a third 
person, and declared his intention of paying the note, 
though no demand for payment had been made on the 
son, and, consequently, no due notice of non-payment 
had been given. Taney argued successfully that, if 
the father's promise had been made in ignorance of the 
facts, he would not have been bound as the endorser of 
the note, but the legal maxim, ignorantia legis non 
excusat, was a part of the Common Law of Maryland, 
and affected this case. 93 

Taney's most important case in 1819, however, was his 
defense of Jacob Gruber in the Frederick County 

90 He also won a Montgomery County case (Benson v. Anderson, 4 H. & J. 
315. Magruder opposed him), for trespass in carrying away negroes, and an 
appeal in an action of assumpsit (Allston v. Contee, 4. H. & J. 351, Magruder 
was opposing counsel) ; but he lost an appeal from Chancery, involving a question 
of proper parties to a case (Smith v. Baldwin, 4 H. & J. 331). In another 
Chancery case, involving the sale of the real property of a decedent, he won. 
Tyler v. Bowie, 4 H. & J. 333. Magruder was with him and Stephen against 
him. 

91 Coomer v. Clements, 4 H. & J. 480. 

92 Burt v. Gwinn, 4 H. & J. 507. 

93 Beck v. Thompson, 4 H. & J. 530. 13 Md. Hist. Mag., 128. C. J. Chase 
dissented. 



ROGER BROOKE TANEY 73 

Court. 94 Gruber was a Methodist Presiding Elder in 
Pennsylvania, 95 who visited a camp meeting in Wash- 
ington County in August, 1818. Rather against his 
will, he was induced to take charge of the service on 
the 16th, and delivered a sermon of an hour's length 
to a congregation, estimated as comprising 3000 per- 
sons, of whom 400 were negroes. His subject was: 
"National Sins," his text, 96 "Righteousness exalteth a 
nation, but sin is a reproach to any people." After 
touching upon infidelity, intemperance, and profanity 
as such sins, he continued by naming slavery as also 
a sin. In this part of his sermon, he said: "We live in 
a free country; and that all men are created equal and 
have inalienable rights, such as life, liberty, and the 
pursuit of happiness, we hold as inalienable truths. 
But there are slaves in our country, and their sweat 
and blood, and tears declare them such. The voice 
of our brother's blood crieth. Is it not a reproach to a 
man to hold articles of liberty and independence in one 
hand, and a bloody whip in the other, while a negro 
stands and trembles before him, with his back cut and 
bleeding?" Gruber also compared Pennsylvania, where 
slavery had been abolished, with Maryland, to the dis- 
credit of the latter. Some of the slaveholders were 
enraged over this discourse, and felt that remarks such 
as these were likely to arouse slaves to rebellion, and 
thus place the masters and their families in danger. 
Accordingly, a warrant was issued for his arrest; he 
was apprehended, and gave bail. The Grand Jury of 
Washington County then indicted him, for instigat- 

94 See Tyler, p. 122 & ff., W. P. Strickland, "Life of Jacob Gruber," espe- 
cially pp. 130 and ff. and 261 and ff., 13 Md. Hist. Mag., p. 136. 

96 Gruber had lived in Maryland in 1814 and 1815, and had been pastor of 
the Light and Sharpe Street Methodist Churches in Baltimore City. 

96 Prov. XIV, 34. 



74 ROGER BROOKE TANEY 

ing negro slaves to "commit acts of mutiny and rebel- 
lion, in contempt and in open violation of the laws, 
good order, and good government of this State, and to 
the evil and pernicious example of all others in like 
case offending, and against the peace, government, 
and dignity of the State." Gruber's friends had in- 
terested themselves, and Rev. S. G. Roszel wrote him 
from Middletown, on October 10: "I have seen Brother 
Pigman, 97 on the business, and he has promised to 
interest on your behalf, should you be arrested, Lawyer 
Taney, the most influential and eminent barrister in 
Washington and Frederick" Counties. Roszel ad- 
vised removal of the case to Frederick. Pigman and 
Taney, 98 who took up the case, also felt that such re- 
moval was desirable, so the case was tried at Fred- 
erick, during the March term of 1819. John Buchanan 
presided as Chief Justice, and Abraham Shriver and 
Thomas Buchanan sat with him as associates. 99 Luther 
Martin had been retained to assist in the defence. 
Taney made the opening statement for the defendant, 
Pigman examined the witnesses, and all three lawyers 
made impressive arguments before the jury, after the 
evidence had been submitted. Taney's closing argu- 
ment was an hour in length, and was considered "most 
effectual and conclusive," being delivered "with his 
usual eloquence and zeal." His opening argument, 
however, is the more memorable, for it showed his 
feelings as to slavery. He called attention to the fact 
that Gruber spoke facing the whites and not the 
negroes, who were separately placed behind the pulpit 
stand, as showing that the address was not made to 

97 Beene S. Pigman of Hagerstown. 

98 Taney was largely responsible for the removal, "being firmly convinced 
that there was no just cause for instituting this prosecution." 

99 Franklin Anderson conducted the prosecution. 



ROGER BROOKE TANEY 75 

the latter. Gruber was not on trial for preaching doc- 
trines calculated to disturb the peace and order of 
society. If his argument was merely shown to be 
unsound and inflammatory, the indictment was not 
proven. A criminal intent must be made to appear, 
and the sermon did not show it. "But we must go 
farther," Taney continued, "and maintain the civil 
and religious rights of free speech." 

Taney called the attention of the jury to Gruber's 
ministry in a denomination which has "steadily in 
view" the "gradual and peaceful abolition of slavery," 
and which forbade a slaveholder to become a member. 

Their preachers are accustomed, in their sermons, to speak 
of the injustice and oppression of slavery. The opinions of 
Mr. Gruber on the subject no one could doubt, and, if any slave- 
holder believed it dangerous to himself, his family, or the com- 
munity to suffer his slaves to learn that all slavery is unjust and 
oppressive, and persuade himself that they would not, of them- 
selves, be able to make the discovery, it was in his power to pre- 
vent them from attending the assemblies, where such doctrines 
were likely to be preached. Mr. Gruber did not go to the slaves; 
they came to him. They could not have come, if their masters 
had chosen to prevent them. 

Taney forced the fighting, and said that Gruber 
felt it his duty 

to avow and to vindicate here the principles which he maintained 
in his sermon. There is no law which forbids us to speak of slavery 
as we think of it. Any man has a right to publish his opinions on 
that subject, whenever he pleases. It is a subject of national 
concern, and may, at all times, be freely discussed. Mr. Gruber 
did quote the language of our great act of national independence, 
and insisted on the principles contained in that venerated instru- 
ment. He did rebuke those masters, who, in the exercise of power, 
are deaf to the calls of humanity; and he warned them of the evils 



76 ROGER BROOKE TANEY 

they might bring upon themselves. He did speak with abhor- 
rence of those reptiles, who live by trading in human flesh, and 
enrich themselves by tearing the husband from the wife, the 
infant from the bosom of the mother; and this, I am instructed, 
was the head and front of his offending. Shall I content myself 
with saying he had a right to say this? that there is no law to 
punish him? So far is he from being the object of punishment, in 
any form of proceeding, that we are prepared to maintain the same 
principles, and to use, if necessary, the same language here, in the 
temple of justice and in the presence of those who are the ministers 
of the law. 

Then followed memorable words: 

A hard necessity, indeed, compels us to endure the evil of slavery 
for a time. It was imposed upon us by another nation, while 
we were yet in a state of colonial vassalage. It cannot be easily, 
or suddenly removed. Yet, while it continues, it is a blot on 
our national character; and every real lover of freedom confidently 
hopes that it will effectually, though it must be gradually, wiped 
away; and earnestly looks for the means by which this necessary 
object may be best attained. And until it shall be accomplished, 
until the time when we can point without a blush to the language 
held in the Declaration of Independence, every friend of humanity 
will seek to lighten the galling chain of slavery, and better, to the 
utmost of his power, the wretched condition of the slave. 

This forceful and shrewd defence made such an 
impression upon the jury, that, after short delibera- 
tion, they rendered a verdict of not guilty. 100 "There 
was a great crowd, great curiosity, and great excite- 
ment at the Court;" but the case is chiefly to be re- 
membered now, because of Taney's ringing words, 
attacking the treasured institution of the South. 

100 Gruber wrote afterwards that his "chief lawyer," probably Taney, was 
paid $200 as a fee, and had been engaged by Gruber's friends, without his knowl- 
edge or request. Gruber was not very grateful to his attorneys, vide Life, p. 257. 



ROGER BROOKE TANEY 77 

Seven cases were argued by Taney before the Appel- 
late Court in 1820. 101 

He lost a slander suit coming from Frederick, in 
which he was opposed by two great lawyers: one, 
William Pinkney, of a passing generation, and the other, 
Reverdy Johnson, of a generation just coming upon 
the scene. 102 Taney was associated unsuccessfully with 
Pinkney in a Chancery appeal concerning a trustee's 
rights of a sale. 103 

Harper called Taney in 1821 to assist him in winning 
the case of Browne v. Kennedy, in which Pinkney, 
Winder and Williams were the opposing counsel. 104 
The suit in ejectment involved riparian rights, founded 
on the original proprietary title, to land reclaimed from 
the navigable waters of Maryland. Chief Justice 
Chase delivered the opinion of the court in favor of 
Harper's and Taney's contention that, under the laws 
of England and the charter of Maryland, the grantees 
of property on both sides of Jones's Falls in Baltimore 
City, obtained the right of accretion by alluvion, or by 
the gradual recession of the waters ad filum medium 
aquae. He also won an appeal from a judgment against 
a debtor, 105 in which case he and Pinkney argued against 
William Schley and Reverdy Johnson. Three cases 

101 He won one and lost the other (Fonher v. Kemp, 5 H. & J., 135. Ride- 
out opposed him) of the two ejectment cases from Washington County. From 
the same county came a case (Beail v. Bayard, 5 H. & J. 127) involving tres- 
pass upon the Antietam Iron Works, in which he was opposed by Martin at 
first, and was defeate i, but, securing a new trial, in which he was opposed by 
Stephen, he was finahy successful (Snevely v. M'Pherson, 5 H. & J. 150). He 
won an appeal in r.ction of assumpsit from Frederick (HagerstownTurnpike 
Road v. Cruger, £ ' H. & J. 122. Pigman opposed him), and an action of trover 
brought against u Deputy Sheriff, who was Taney's client. Mark v. Lawrence, 
5 H. & J. 64. Pigman opposed him. 

102 House v. House, 5 H. & J. 125. 

103 Davis v. Simpson, 5 H. & J. 147. Pigman was opposing counsel. 

104 5 H. & J. 195. Tyler, 132. 13 Md. Hist. Mag., p. 130 
106 Creager v. Brengle, 5 H. & J. 234. 



78 ROGER BROOKE TANEY 

were lost by Taney, however, in that year: A suit of 
replevin for slaves, arising in Montgomery County, 106 
a case 107 involving an executory contract coming from 
Washington County, and a petition for freedom made 
by negroes in Harford County. 108 In this case, he 
was opposed by the forgotten political economist, 
Daniel Raymond, and by Reverdy Johnson, and was 
without assistance. A deed of manumission had actual- 
ly been executed, in compliance with the provisions 
of a will, and Taney was unable to upset the verdict of 
the County Court, which granted emancipation to the 
ten negroes who claimed it. Taney had manumitted 
his own slaves, and, in the Gruber case, had announced 
his opposition to slavery; but he saw no inconsistency, 
in endeavoring to secure for slaveholders, what he 
believed to be their rights under the law of the State. 

In 1822, he fought to a successful issue a suit involv- 
ing a devise to St. Peter's Protestant Episcopal Church 
in Baltimore City. Assisted by Winder and Murray, 
and opposed by Harper and Reverdy Johnson, 109 he 
secured a decision from the Appellate Court to the 
effect that the Statute of 43 Elizabeth as to Charitable 
Uses was not in force in Maryland, and that, indepen- 
dently of that Statute, Chancery cannot enforce a devise 
to charitable uses. He also won a chancery appeal from 
Anne Arundel County. 110 The other two cases which 
he argued in that year, were lost by him. In one of 
these, 111 he was allied with Harper against Wirt, and, 

106 Stephen opposed Taney and Schley. Culver v. Shriner, 5 H. & J. 218. 

107 Reverdy Johnson and Schley opposed Taney and May, ->dier. Eichelber- 
ger v. M'Cauley, 5 H. & J. 213. 

108 Hughes v. Negro Milly, 5 H. & J. 311. 13 Md. Hist Mag o. 132. 

109 Dashiell v. Attorney General, 5 H. & J. 392. 

110 Warfield v. Warfield. Taney and Winder opposed Pinkney and Magru- 
der. 5 H. & J. 459. 

111 Patterson v. Marine Insurance Company, 5 H. & J. 417. 



ROGER BROOKE TANEY 79 

vainly, endeavored to induce the Court of Appeals to 
take his view as to an action of covenant on an insur- 
ance policy issued on a ship for a voyage in 1813, from 
Baltimore to Lisbon, on which voyage the British 
seized the ship. In the other case, arising in Charles 
County, 112 the suit was brought for slander as to words 
spoken to a United States Senator concerning another 
man's fitness for office, and the Court ruled that malice 
had not been proven, and that the words spoken, con- 
fidentially, in answer to the Senator's request for in- 
formation, were not actionable. 113 

Before removing from Frederick in 1823, Taney 
argued three cases before the Court of Appeals, all of 
which he won. One of these cases concerned a bequest in 
Caroline County to charitable uses, and was won by 
Taney and his associates, the same lawyers being en- 
gaged as in the Baltimore case of the preceding year. 114 
In a second case, he secured the setting aside of a ver- 
dict against a man accused of giving a pass improperly 
to a slave, 115 while the third case was a chancery one, 
involving an award by arbitrators. 116 

It is interesting to note that not one case argued by 
Taney came from the Eastern Shore, that only one came 
from Taney's native county, and that the great major- 
ity of them were from Frederick and its adjoining coun- 
ties. Taney felt that this "pent up Utica" should not 
longer "contain his powers, "and prepared to remove to 
Baltimore. 117 In February, 1823, he sold his home 

112 He was opposed by Harper and Magruder and associated with Winder 
and A. C. Bullitt. 

113 Law v. Scott. 5 H. & J. 438. 

114 Dashiell v. Attorney General. 6 H. & J. 1. 

116 Duvall v. State. 6 H. & J. 9. T. B. Dorsey opposed Taney. 
116 Cromwell v. Owings. 6 H. & J. 11. Taney and Winder were opposed 
by Heath and Reverdy Johnson. 
u7 13 Md. Hist. Mag., p. 140. 



80 ROGER BROOKE TANEY 

on Bentz Street, together with about two acres of land, 
and his furniture was sold at auction on April 25. The 
lot he had bought on Church Street, was also offered 
for sale, but was not disposed of until a year later. 

He was forty-six years of age when he left Frederick, 
and he ever retained an affection for the place, which 
led him to have his body buried there. 118 After he died, 
Reverdy Johnson, whose rise to prominence at the 
bar was coincident with the later years of Taney's 
Frederick career, spoke thus of Taney, as he knew him 
in an acquaintance dating back to 1815, 119 in which 
year Johnson "was admitted to practice in the Court 
of Appeals. At that time, the Maryland Bar was adorn- 
ed by Winder, Dorsey, Harper, Pinkney, and Martin, 
all of them men of profound legal learning, some of 
them of dazzling and extraordinary eloquence." "In 
this galaxy of talent," Johnson continued, "Mr. Taney 
shone with a splendor that challenged admiration, and 
made him, in the opinion of all, their equal. Whilst 
enjoying the confidence of his elder brethren and ad- 
mitted to be in every way their peer, he was especially 
dear to his juniors. It was my good fortune to have 
his confidence and his friendship almost from the first, 
and greatly did I profit by it. Often his associate, 
and often his opponent, I had constant opportunities 
of judging of his legal learning, of his ability in its use, 
and the fair and elevated ground upon which he ever 
acted. In neither relation is it possible to exaggerate 
his excellence. In those respects, he was a model that 
his elder contemporaries were proud of, and his juniors 
admired and kept before them as an example." 

118 S. T. Wallis's Works, I, 143. 

119 Tyler, p. 493. 



CHAPTER V 

Career at the Baltimore Bar (1823-1831) 

In 1823, Taney removed to Baltimore to secure a 
wider field for his practice and took a house on South 
Gay Street, whence he removed in 1825, to a double 
house on the north side of Lexington Street, one door 
east of the corner of St. Paul Street, a house which stood, 
occupied by lawyers' offices in its later years, until it 
was torn down in March, 1918. He was opposite the 
Court House, a little over a block from the Battle 
Monument, and little further away from Guy's and 
Barnum's Hotels. John H. B. Latrobe lived next to 
him, on the corner, and the relations of the two neigh- 
bors were not always pleasant. 1 Severn Teackle Wallis, 
who was to be Taney's eulogist, lived around the corner, 
and Reverdy Johnson lived opposite Barnum's Hotel, and 
so was not far away. The society was a compact little 
one into which Taney entered and one in which lawyers 
were an important social element. The bar was a bril- 
liant one. Martin and Pinkney had recently died, but 
William H. Winder and Robert Goodloe Harper 2 were 
in full practice and William Wirt came frequently to 
try cases, although he did not remove to Baltimore until 
1829. 3 Reverdy Johnson, in his later years, wrote 4 that 
the leading lawyers in Baltimore at that time were "as 

1 See John E. Semmes, "Life of J. H. B. Latrobe," p. 202, Reverdy Johnson 
served as arbitrator, when Taney claimed that Latrobe trespassed upon his lot, 
in the course of extending a backbuilding. 

2 Latrobe read law in his office, Semmes's Latrobe, 98. 

3 John P. Kennedy's "Life of Wirt," vol. II, p. 226. 

4 Letter to Samuel Tyler July 6, 1871 in Maryland Historical Society. 
13 Md. Hist. Mag. 169. 

81 



82 ROGER BROOKE TANEY 

able as any members of the profession in the country" 
and Kennedy's praise is not too high, when he states 
that the Baltimore bar of those times "was distinguished 
by an extraordinary assemblage of the highest order of 
talent: — men who singly would have shed lustre upon 
any professional assemblage in the country and who, 
united on this theatre, composed a constellation which 
attracted universal notice." During the twenties, four 
of the six leaders of the bar died shortly after each other 
and soon only Taney remained, but the younger genera- 
tion were not unworthy successors and Jonathan Mere- 
dith, Reverdy Johnson, John V. L. McMahon, John 
H. B. Latrobe, John Glenn, and William Schley stepped 
into the places left by the earlier men. At the head 
of this group stood Wirt and Taney — "instructors to 
guide, models to be imitated, gifted with all qualities 
to stimulate the ambitions of generous minds striving 
after an honorable reputation," as Kennedy writes. 

Wirt told an amusing incident in reference to Taney, 
in a letter written Mrs. Wirt from Baltimore, on October 
30, 1825, the day after both lawyers had dined at Mr. 
Oliver's with the Duke of Saxe Weimar, who was 
visiting America. The Duke sat between Messrs. 
Oliver and Barney, "neither of whom seemed to be 
able to find him in talk." W T irt sat next Taney, until 
the latter, who is described by Wirt as "a pious Roman 
Catholic, as well as a most amiable gentleman," said, 5 
"Come, Mr. Barney, Mr. Wirt and I sit side by side 
quite enough in Court; let me change places with you," 
his object being to amuse the Duke. The change was 
made and the Duke soon pronounced a "philippic 
against the Roman Catholic religion, which he blamed 
for all the political conspiracies in Europe. Taney 

B Tyler p. 161 quoting Kennedy's Wirt II p. 177. 



ROGER BROOKE TANEY S3 

took the occasion to tell him that he was a Roman 
Catholic. This produced some embarrassment, but the 
Duke got over it. Taney changed the subject to the 
war, in which the Duke had figured particularly at 
Waterloo — and unluckily asked the Duke about Blucher. 
Now Blucher, it seems, had on some occasion gone into 
the Duke's territories, and was exacting contributions 
from his subjects, which the Duke hearing of, he had 
him put in prison. So here was a new contretemps, fol- 
lowed by a general pause at the table." 

Soon after his arrival in Baltimore, Taney was elected 
counsel for the Union Bank of Maryland and also became 
one of its directors. The president of this institution 
was a man of great power, Thomas Ellicott, 6 and the 
senior director was a much respected Hebrew, Solomon 
Etting. The association with these men and the nat- 
ural rivalry between bankers goes far, as we shall see, 
to explain Taney's deep seated hostility towards the 
United States Bank, of which a branch was located in 
Baltimore. 

A second momentous event in Taney's life occurred 
shortly after his removal from Frederick. He had been 
a life long Federalist and had never forgiven John Quincy 
Adams for his acceptance of the position of the Jefferson- 
ian Republicans in the years preceding the War of 1812. 
In 1824, Adams became a candidate for the Presidency. 
So personal was political feeling in those days that impor- 
tant Federalist leaders in Maryland felt that they could 
not support Adams. Robert Goodloe Harper, still 
claiming to be a "staunch Federalist," commented to 
Latrobe in "no measured terms" on Adams' conduct, 
as of one who had left that party, and, because of Har- 
per's influence, Latrobe voted for — Andrew Jackson! 7 

6 Semmes's Latrobe 399 to 410. 

7 Semmes's Latrobe, pp. Ill, 119. 



84 ROGER BROOKE TANEY 

Charles Carroll of Carrollton, who had always been a 
Federalist, agreed with his son-in-law, Harper, and so 
did Taney. Carroll and Taney urged Henry Ridgeley 
Warfield, a member of the House of Representatives 
from Western Maryland, to vote for Jackson, when 
the election came up in the House, into which it had 
been thrown, since no one had secured a majority in 
the electoral college. Warfield went to Adams 8 with an 
undecided mind and said that Carroll and Taney were 
"under the impression" that, if Adams "should be 
elected, the administration would be conducted on the 
principle of proscribing the Federalist party." Adams 
told Warfield that he would "proscribe no party. It 
was true that he had differed from the Federalist party, 
but had always done justice to the individuals com- 
posing it." He expressed regret that Taney, "of whose 
talents I heard high encomiums, should harbor such 
opinions of me." Warfield went away satisfied to vote 
for Adams, but this seemingly capricious and unreason- 
able decision of Taney to vote for Jackson was never 
reconsidered and led him to become a thorough supporter 
and intimate friend of the founder of the Democratic 
party. 

Taney supported Jackson in 1828, when he defeated 
Adams, and, by this time, had become a thorough advo- 
cate of the Democratic party. He was now recognized 
as one of the leaders of that party in Maryland, as he 
had been of the Federalists. He wrote confidentially 9 on 
August 14, 1829, to recommend Mr. Sands for the col- 
lectorship of the customs at Annapolis. Ingham sus- 
pected Taney of being governed by old political attach- 

8 On February 17, 1825, J. Q. Adams's Memoirs, VI, 499. 
* Taney was about to spend a fortnight in Taneytown. Manuscript in 
New York Public Library. 



ROGER BROOKE TANEY 85 

merits, but Sands' appointment, especially since Green, 
the Annapolis postmaster, was a Federalist, would 
advance the "cause of Jacksonism," which Taney pro- 
fessed to be the "only -ism about which I now feel any 
concern." He had recommended no other officer out- 
side of Baltimore. On September 16, he wrote again, 10 
after a visit to Frederick, in which county he hoped the 
Jacksonians would carry the election and also obtain 
a majority in the House of Delegates. He still pre- 
ferred to have Sands appointed, but had not known that 
so many wished the office. He felt that "the interest 
of the party" required the appointment and that the 
"appointment of another Federalist to the only other 
office under the general government worth having would 
not be well received." 

We catch a few miscellaneous glimpses of Taney dur- 
ing this period. Writing from Washington 11 to his 
daughter Sophia on February 22, 1825, he spoke of his 
indisposition; of his missing his family, and of the 
trouble that his daughter Maria suffered from her eyes. 
He was becoming known outside the State, so that, 
when Latrobe visited the aged James Madison 12 in 1832, 
the latter asked a great many questions about Taney and 
his opinions and got Latrobe to describe him. Always 
a devout worshipper in the Roman Catholic Church 
he became the adviser for Archbishop Ambrose Marechal 
of Baltimore, in a controversy which the prelate had 
with the Jesuits. We find a curious linking of Taney 
with the Roman advocates and jurists, when we read that 

10 His correspondent had offended Schley and Taney advised him to write 
Schley and state that the information contained in Smith's letter was not 
received from him. Taney would have spoken to Schley about the matter, if 
he had seen him. Manuscript in New York Public Library. 

11 13 Md. Hist. Mag. 171. 

12 Semmes's Latrobe, p. 244. 



86 ROGER BROOKE TANEY 

Marechal relied on " clarissimum R. B. Taney, qui inter 
jurisperitos nostros longe eminent, qui per plures annos 
honorabili officio senatoris in legislatum Marylandi func- 
tus est" Taney advised Marechal that it would not be 
improper to refer the controversy to Pope Pius VII. 
Word of this came to John Quincy Adams, who was then 
Secretary of State, and, through D. Brent, the Chief 
Clerk of the Department, he sent Marechal a letter, 
"regretting the appeal to a foreign state, touching the 
administration of temporal concerns" under the juris- 
diction of this country. On receipt of the letter, 
Marechal showed it to Taney, when he came to the 
archbishop's residence, on Sunday, October 24, 1824, 
after mass, and that "amiable and excellent gentleman" 
was deeply affected by the report of the "false colors 
under which Marechal's proceedings had been repre- 
sented" to Mr. Adams. 13 

In 1827, Governor Kent, who was a Federalist, 
appointed Taney as Attorney General of Maryland, 
upon the unanimous recommendation of the Baltimore 
Bar. 14 In later life, Taney often said that this was the 
only office he desired to hold. The Attorney General 
at that period "had the appointment of Deputy Attor- 
neys of the State in the several judicial districts" and 
Tyler informs us that "in these appointments, while he 
showed his regard for the public interests, he mani- 
fested his personal friendships for those who stood in 
need of aid in their struggles at the beginning of pro- 
fessional life. 15 The records of the office were imper- 
fectly kept and Governor Albert C. Ritchie, when 
Attorney General, c6uld find no references in the office 

13 Thos. Hughes, "History of the Jesuits in North America," Documents I, 
pp. 491, 556, 1073, 1079, 1148. 
"Tyler, p. 163. 
16 Tyler, p. 164. 



ROGER BROOKE TANEY 87 

to Taney's incumbency. He held the position until 
July 23, 1831, when he resigned, to accept the Attorney- 
Generalship of the United States. We possess, however, 
a vivid description of his appearance at that time from 
Latrobe's graphic pen. 18 

When Mr. Taney rose to speak, you saw a tall, square shouldered 
man, flat breasted in a degree to be remarked upon, with a stoop 
that made his shoulders even more prominent, a face without one 
good feature, a mouth unusually large, in which were discolored 
and irregular teeth, the gums of which were visible when he 
smiled, dressed always in black, his clothes sitting ill upon him, 
his hands spare with projecting veins, — in a word a gaunt, ungainly 
man. His voice, too, was hollow, as the voice of one who was 
consumptive. And yet, when he began to speak, you never 
thought of his physical appearance, so clear, so simple, so ad- 
mirably arranged, were his low voiced words. He used no gestures. 
He used even emphasis but sparely. There was an air of so much 
sincerity in all he said that it was next to impossible to believe 
he could be wrong. Not a redundant syllable, not a phrase 
repeated, and, to repeat, so exquisitely simple. I remember once 
hearing him in a complicated case, and when he sat down, fancy- 
ing that I, in my first year's practice, could have done as well, 
so simple had become complications in his hands. 

The story is told that William Pinkney said of Taney: 
"I can answer his arguments, I am not afraid of his 
logic, but that infernal apostolic manner of his, there is 
no replying to." 17 

His manner to young lawyers was considerate and 
quite different from Wirt's. When Robert Goodloe 
Harper died, Latrobe was asked to take his place in a 
suit and be junior counsel to Taney. 18 Taney asked to 

16 Semmes's Latrobe, p. 202. 

17 Semmes's Latrobe, p. 203. 

18 Semmes's Latrobe, p. 200. The case was probably Oliver v. Gray 1 
H. & J. 204. 



88 ROGER BROOKE TANEY 

see the brief which Latrobe had prepared and "spoke 
kindly of it and then, saying that it was only fair" that 
Latrobe should see his brief, handed it to Latrobe. 
When Latrobe proposed to return it, "Not at all," Taney 
replied, "I placed it at your disposal. If you can make 
use of it, I shall be better pleased, though do not let it 
interfere with your own line of argument." When La- 
trobe said "something about availing of his labors," he 
answered: "Never mind that, I shall, no doubt, find 
something to say in answer to the other side — some 
pickings and stealings." After writing down the account 
of this incident, Latrobe added: "This was Mr. Taney's 
way invariably. In numerous cases afterwards, he was 
the same liberal colleague." 

Together with Jonathan Meredith, Taney and Latrobe 
were counsel for Mrs. Barnum in the Barnum-Gilmor 
divorce case, before the General Assembly, a cause 
celebre of that period. When the three had gone over 
Latrobe's report of her story, before the evidence had 
been given, Taney said to his associate: 19 

Are you quite sure, Brother Latrobe, that the Committee on 
Divorces will not suspect your handiwork as they listen to the 
production? Suppose now that, without altering an idea or 
changing the position of a sentence, you try how simply you can 
tell the story. The facts, you know, are all we want and these 
in the fewest words. 

Taney was counsel for the venerable Charles Carroll 
of Carrollton and drew up his will, except the last 
codicil, of which Mr. Latrobe was the author, 20 and an 
interesting light is thrown upon Taney's practice by a 
letter he wrote Carroll, on January 1, 1825, concerning 

19 Semmes's Latrobe, p. 209. 

20 Semmes's Latrobe, p. 290. 



ROGER BROOKE TANEY 89 

the Browning claim. 21 Taney advised that the case be 
compromised, as probbably this could be done for less 
than Taney should charge for his argument in the case. 
Mr. Carroll . persisted in the prosecution of the case 
which finally reached the Supreme Court of the United 
States, as we shall see. 22 

Taney's "only aim in life" at this time was profes- 
sional. 23 "He worked by day and by night. Profes- 
sional duties and his home circle occupied his whole 
time. Not a moment was spent in fashionable life. 
He looked at the world from the point of duty" and yet 
his earlier biographer adds that he did not omit "greeting 
with singular cordiality every one he met." 

Taney's practice was not as extensive and lucrative as 
that of Reverdy Johnson and, curiously enough, he lost 
a very large proportion of the cases in which he was 
engaged in the Court of Appeals. Defeat, however, 
never daunted him and I suspect that he took many of 
the cases because they were hard. He practiced in the 
United States District and Circuit Courts and, of course, 
a very large part of his time was occupied by that nisi 
prius work, so important for the well-being of the com- 
munity and yet having so little permanent record for 
the biographer. 

In 1823, he appeared as counsel in three cases in the 
Court of Appeals, in one of which he acted as counsel 
for the Union Bank. The cases dealt with a sheriff's 
qualifications, debt on an appeal bond, and the alleged 
negligence of a bank in regard to an insolvents' bill. 24 

21 Manuscript in New York Public Library. 

22 Henry Carroll administrator of Louisa Browning v. Charles Carroll of 
Carrollton 11 Wheaton 135. 

23 Tyler, pp. 160,166. 

24 6 H. & J. 1 16, Roberts v. Gibson, appeal from Chancery. Wirt, Magruder 
and Kerr against F. B. Dorsey and Taney; (Taney's first Eastern Shore case); 



90 ROGER BROOKE TANEY 

Seven cases are reported in 1824, in which Taney was 
engaged as counsel. 25 The year 1825 was a busy one for 
Taney in the Court of Appeals, for fourteen cases are 
reported in which he made arguments there. 26 One is 
impressed by the brilliancy of the Bar, and notices the 
facts that a case is seldom managed by one lawyer and 
that the grouping of the lawyers changes in a kaleido- 
scopic manner. In two of these cases, Taney was 
opposed to Key, his brother-in-law, and, in one, he was 
associated with him. His practice included cases from 
Western and Southern Maryland as well as from Balti- 
more and its vicinity. 

134 Karthaus v. Owings. Winder against Taney and Reverdy Johnson; 
146 Jackson v. Union Bank, Winder and Myers against Taney and Mitchell. 

25 Three of these dealt with title to land (one of which was an action in 
ejectment and the others were equitable cases), one was for a debt claimed as 
due on a bond, one an execution on a judgment, one an alleged false return 
of a sheriff, and one an assault and battery case. 

6. H. & G. 182 Barney v. Patterson's Lessee, Wirt and Harper v. Taney and 
Magruder; 229 Graham v. Yales, Taney and Reverdy Johnson against Harper 
and Magruder; 231 Cranford v. the State, Taney against Magruder; 261, 
Smith v. Dorsey, Ashton and Reverdy Johnson, against Magruder and Taney; 
264 Harding v. Stevenson, Reverdy Johnson and Glenn, against Wirt and 
Taney; 268 State v. Dashiell, T. B. Dorsey and Nicholas against Taney and 
Tyson; 288 Drury v. Conner, Taney and Scott v. Magruder and Brewer. 

26 Of the fourteen cases four were chancery ones (one of these dealt with 
the recovery of money and one with a deed to land), two were actions of eject- 
ment, two were actions of assumpsit to recover a paving tax, one was on a 
covenant, one on the rights of trustees, one on the construction of a will, one 
on the endorsement of a note, one on a lease of land and rents, one was an 
action of replevin for a slave in St. Mary's County. 

6. H. & J. 302. Thompson v. McKim. Stewart, Taney and Wirt against 
Emory and Winchester: 336 Beall v. Tyson, Taney against Harper and Speed; 
364 Lyles v. Digges, Magruder and F. S. Key against Jones, Taney and Mar- 
shall; 375 Mayor of Baltimore v. Moore, Taney and Scott against Harper, 
Reverdy Johnson, and Howard; 383, Mayor of Baltimore v. Howard, Same 
lawyers; 408 Allegre v. Md. Ins. Co., Mayer, John Glenn and Taney against 
Lloyd and Wirt; 415 Fenwick v. Forrest, Causin and F. S. Key against Ma- 
gruder and Taney; 427, Williams v. Ellicott, Taney v. R. B. Magruder; 
460 Wirt v. Briscoe, Taney, Magruder and F. S. Key against Jones and Reverdy 



ROGER BROOKE TANEY 91 

In 1825, Taney was admitted to the Bar of the United 
States Supreme Court and argued there two admiralty 
cases, both of which he lost. 27 

The Maryland reports for 1826 show fourteen cases 
argued by Taney, in one of which he was counsel for the 
Union Bank. 28 One of the other cases, that of Ringgold 
v. Ringgold, which came up from the Cecil County 
Court, had engaged in it a galaxy of seven lawyers, 
three associated with Taney and three agaist him, 
forming a most remarkable combination of talents. The 
case was an equitable one, dealing with the relations of 

Johnson; 472 Lemonier v. Godfroid, Taney and Mayer against Mitchell and 
Glenn; 475 Dame v. Gatlett, Taney and B. Forrest against Magruder; 501 
Lammot v. Bowly, Williams, Taney, and Harper against Reverdy Johnson and 
Wirt; 527 Cumberland Bank v. McKinley, Jones and Speed against Taney; 
529 Williams v. Mayor of Annapolis, Magruder and Taney against Brewer, 
Mayer and Jones. 

27 Manro v. Almeida 10 Wheaton 473. The Gran Para (Consul General of 
Portugal, Libellant) 10 Wheaton, 497. (See I Story's Story, 40.) 

28 Four cases arose out of wills, two of these cases being concerned with 
devises of realty, one case dealt with letters of administration, two cases were 
actions of assumpsit, one case was an action of debt, two cases arose from 
mortgages to banks, one was for an ejectment, one an action of replevin and 
two were suits in equity concerning land. 

7 H. & J. 55 Cromwell v. Owings, Taney and Mayer against Reverdy 
Johnson; 73 James v. Lawrence, Palmer against Taney and Gill — a Frederick 
County case; 92 Clopper v. Union Bank, Williams and Reverdy Johnson 
against Taney and Kennedy; 105 City Bank v. Bateman, Taney and Glenn 
against Wirt and Reverdy Johnson; 134, Gist v. Cockey, Heath and Reverdy 
Johnson against Scott and Taney; 141 Rogers v. Moore, Magruder against 
Taney and Rogers; 161 Chase v. McDonald, Wirt, Magruder, and Mayer 
against Taney, Moale and Reverdy Johnson; 202 Parnell and Smith v. Far* 
mers Bank, Taney and Gill against Magruder; 208, Benson v. Masseter — a 
Frederick case — Reverdy Johnson and Gill v. Taney; 320, Kemp v. McPherson 
■ — a Frederick case — Palmer and Taney against Ross and Magruder; 345 
Dorsey v. Smith, Charles Dorsey, Magruder, and Taney against Reverdy 
Johnson; 388 Semmes v. Semmes, Stonestreet and Taney against C. Dorsey 
and Brawner; 1 H. & G. 9 Sewell v. Sewell — a Calvert County Case — C. 
Dorsey against Boyle and Taney; 11 Ringgold v. Ringgold, Wirt, Jones, 
Taney and Magruder against Berrien, Hoffman and Mayer. 



92 ROGER BROOKE TANEY 

trustee of land to the cestui que trust and Tyler 29 is quite 
correct in saying that the relation, "in every respect and 
every phase of obligation and reciprocal right and duty, 
under the most varied circumstances, was thoroughly 
discussed, under all the light of learning belonging to the 
doctrine 30 of trusts. And the case is marked by the 
precision with which the controversy and the relief is 
kept within the pleadings." 

In 1826, Taney pleaded two cases before the United 
States Supreme Court. One of these was a most 
important case politically rather than legally — that of 
Solomon Etting v. The Bank of the United States. In 
that case Taney associated Daniel Webster with him as 
counsel. Judge Story was considerably impressed by 
Taney's argument and wrote home that Taney is "a man 
of fine Talents." 31 Attorney General Wirt and Emmet 
represented the Bank. James W. McCullough, had 
been cashier of the Baltimore Branch of the United 
States Bank. 32 He speculated with the funds of the 
Bank, and together with his partners owed the institu- 
tion three and one half million dollars. McCullough 
received a salary of $4000 a year and had no property. 
After the Bank discovered the cashier's misconduct, but 
while he was still in office and the Bank Directors still 
kept their discovery secret, sixteen merchants of Balti- 
more were induced to become bound to the Bank as his 
security to the sum of $12,500 each. Then Mr. Mc- 
Cullough was removed by the Directors, for "unauthor- 
ized and fraudulent appropriation of their funds to his 

29 p. 162. 

30 The report of the case extends from page 11 to page 86 of 1 H. & G. 

si Etting v. U. S. Bank. 11 Wheaton 59, I Story's "Life of Story," p. 
541, 13 Md. Hist. Mag. 115. 

32 He was the appellee in McCulloh v. Maryland, his name being spelled 
in a different way. 



ROGER BROOKE TANEY 93 

own use," which knowledge the Bank did not promul- 
gate, though they contemplated McCullough's removal, 
as soon as the securities had been given. When demand 
for payment was made upon Etting, he refused it, since 
he had endorsed McCullough's note, without knowing 
that he had been guilty of fraud, or abuse of office. 
Taney lost the case, but the revelations made in the 
course of it could not fail to confirm him in his hostility 
to the Bank and his suspicions of the institution. We 
must remember, also, that during all this time Taney 
continued to be counsel and director of the rival Union 
Bank, whose strong minded president was his trusted 
friend. Taney's other case in 1826 was that of Henry 
Carroll, Administrator of Louisa Browning, v. Charles 
Carroll of Carrollton, which involved the proprietary's 
quit-rents 33 In this case Taney was employed by the State 
of Maryland and was associated with Wirt. After the 
decision was rendered, as no answer came from the State 
authorities at Annapolis to Wirt's letter informing them 
of the decision of the case, Wirt wrote Taney a sprightly 
letter on March 30, stating he had not spoken of fees, 
"which I thought would be rather unseemly on ow/- part 
(for I had spoken in both our names) toward the State 
of Maryland, our liege mother. But the old lady is 
maintaining a rather unnatural silence on her part; for 
I have not received a single word in reply, not even in 
the form of thanks, for our great and successful exertions 
— for, as nobody else will praise us, why should we not 
praise ourselves?" 

Taney was appointed Attorney General of Maryland 
in 1827. In that year, taking Reverdy Johnson as his 
junior counsel, he argued for the State the case of 

33 11 Wheaton, p. 135, Tyler, p. 163; 13 Md. Hist. Mag. 115, I Story's 
Story, 542. 



94 ROGER BROOKE TANEY 

Brown v. Baltimore before the Supreme Court, having 
Meredith and Attorney General Wirt against him. The 
State of Maryland had passed a law, requiring that a 
man who sold imported goods in the original package 
must take out a State license and the Supreme Court 
held that this law was unconstitutional. The decision 34 
was one of Marshall's leading ones and Taney, though 
chagrined at the time by defeat in a cause in which he 
believed, later confessed that he had been wrong in his 
contentions at this trial. 35 At the same term he was 
counsel in two other cases, which he also lost. In the 
United States v. Gooding, together with Mitchell, he 
unsuccessfully contended for the defendant, in a case 
involving the African slave trade, against Wirt and 
Coxe. 36 In Drummond v. Executors of Prestman, 37 to- 
gether with Donaldson, he strove in vain against Wirt 
and Meredith, in a case in which the Court decided that a 
judgment against a principal is evidence of the amount 
due from him in an action against his guarantor. 

In the Maryland Court of Appeals during 1827, 
Taney was counsel in eleven cases. 38 In a case in which 

* 12 Wheaton, p. 419. I Story's Story, 542. 

36 Shown by his statement in an opinion when on the bench in the License 
Cases, 5 Howard 504. 

36 12 Wheaton, p. 460. 

87 12 Wheaton, p. 516. 

28 The other cases related to covenant, debt, fire insurance, the Statute 
of limitations, guardianshp, an ante-nuptial settlement, an execution under 
& fieri facias, a replevin for a slave (originally brought in 1816), and a replevin 
for a vessel. 

1 H. & G. 175 Betts v. Union Bank, J. Glenn and Taney against Reverdy 
Johnson; 204 Oliver v. Gray, Latrobe and Taney v. Raymond and Gwynn; 
220 Drury v. Conner, Taney against Brewer and Magruder; 231 Raborg v. 
Bank of Columbia, F. S. Key against Taney; 295 Jolly v. Baltimore Equitable 
Society, Williams against Wirt and Taney; 308, McEldery v. Flannegan, 
Reverdy Johnson and Taney against Wirt, Meredith, and Evans; 324 Union 



ROGER BROOKE TANEY 95 

he represented the Union Bank, he showed his skill as 
a special pleader. One case in which he opposed Key, 
concerned days of grace. 

The case of Oliver v. Gray 39 was an important one, 
setting the doctrine of the law in regard to the basis 
upon what a suit should be brought, so as to escape the 
provisions of the Statute of Limitations, where an 
acknowledgment of a debt had been made, after the 
period of limitation had occurred. Tyler correctly states 
that "the very comprehensive and elaborate opinion of 
the Court indicates, by its accurate analysis of the 
situation, the thoroughness with which it had been dis- 
cussed at the bar." 

Though Taney came from an inland town, he soon so 
mastered marine law and the law of marine insurance 
that he was later to become a great admiralty judge. 
He was employed in a considerable number of such 
cases 40 and, in 1828, won a marine insurance case in the 
Supreme Court — his only appearance there in that year. 
In this case Meredith was with him and Wirt and Ogden 
opposed him. 41 He argued only five cases that year in 
the Court of Appeals. 42 

Taney argued one case in the Supreme Court in 

Bank v. Ridgely, Taney, Reverdy Johnson and Eichelberger, against Mitchell 
and Kennedy; 434, Thomas v. Turvey (submitted without argument) , Stone- 
street against Taney, Magruder, and C. Dorsey; 444 Williamson v. Dillon, 
Scott and Taney against Meredith; 2 H. & G. 48. Raborg v. Hammond, Taney 
and S. J. Donaldson against Meredith and Reverdy Johnson; 63 Archer v. 
Williamson, Taney and Scott against Mitchell and Reverdy Johnson. 

39 Tyler, p. 165. 

"Tyler, p. 166. 

41 1 Peters 170, McLanahan v. Universal Ins. Co. 

42 One of these was a criminal appeal from a verdict declaring a man guilty 
of stealing a banknote, and the others were an action in replevin dating from 
1824, a case of a widow's dower (instituted in 1810), a question about a chattel 
mortgage, and a chancery case (instituted in 1819) involving land. 



96 ROGER BROOKE TANEY 

1829, that of LeGrand v. Darnell; 43 an action to deter- 
mine whether a devise of land by a man to his slave, by 
necessary implication, gives the slave freedom. Taney 
represented a man who wished to buy the estate and 
lost the case. 

Ten cases were argued by Taney in the Court of 
Appeals in 1829. 44 In two of these cases, he appeared 
for the Union Bank and in one for the State. One of 
these causes was a case in assumpsit, arising out of trade 
with the Baltic in 1810, and another concerned a more 
distant trade for it dealt with a cargo of goods in Chile 
and the powers of ship owners and of the ship captain. 

In 1830, Taney appeared in one case in the Supreme 
Court and in seventeen in the Court of Appeals. In 
his Federal Case, which he lost, it was established that 
the United States owns the streets in the City of Wash- 
ington in fee simple and that the original proprietors 

43 2 H. &. G. 321 Reeside v. Fischer, Meredith against Taney; 390 Weems v. 
Brewer, Speed and Taney against Brewer and Magruder; 408, State v. Cassell, 
Taney and Gill for State. No opposing counsel; 415, Hudson v. Warner, 
Taney and Mitchell against Winchester; 443 Maccubbin v. Cromwell, Magru- 
der and Taney against Mayer and Meredith. 

u Stewart against him. 2 Peters 664. In 1829, we find him arranging with 
Charles Carroll of Carrollton in reference to changes in the latter' s will. 13 Md. 
Hist. Mag. 61. Several of the cases were chancery ones, concerning obstruct- 
ing and closing a road in Baltimore County, the settlement of an estate, the 
partition of a trust estate, a mortgage, and the deed of a feme covert. Two 
cases were concerned with insolvent debtors, nuisances were the subject of one 
suit. 1 G. & J. 1, Pawson v. Donnell, Williams and Taney against C. C. 
Harper, R. B. Magruder and Wirt; 152, Wirgman v. Mactier, Meredith and 
Wirt against Taney and Scott; 184 Williamson v. Carnan, Gwynn against 
Magruder and Taney; 231, Chamberlain v. State — a Frederick Case — Taney 
and Ross against Pigman; 311 Danels v. Taggart, Winchester and Wirt against 
Mayer and Taney; 325, Coale v. Barney, Mayer and Taney against Winches- 
ter; 346, Union Bank v. Edwards, Reverdy Johnson and Williams against 
Kennedy and Taney; 480, Baltimore City v. Hughes, Taney and J. Scott 
against Reverdy Johnson; 2 G. & J. 1, Brundige v. Poor, Moale and Williams 
against Winchester and Taney; 73 Winchester v. Union Bank, Reverdy John- 
son and Raymond against Taney and Kennedy. 



ROGER BROOKE TANEY 97 

have no interest therein. In this suit, Taney was 
associated with Coxe, against the brilliant quartette com- 
posed of Walter Jones, Wirt, Webster, and Berrien, 
the Attorney General. 45 Of the cases in the Court of 
Appeals, 40 five were those in which Taney acted as the 
State's representative : against the manager of an unau- 
thorized lottery, against one who had failed to make 
proper records in chancery, against a man charged with 
assault and intent to murder, against an insolvent, and 
against a delinquent tax collector. Two cases concerned 
the insurance on a cargo of mules and jackasses placed on 
a brig and lost in a storm, one was a case of trespass on 
land, two were chancery cases (one of them concerning 
the personal property of a decedent), another dealt with 
a judgment against an executor, and still another with 
the administration of an estate. A promissory note, a 
writ of replevin, the statute of limitations, the char- 
tering of a vessel for a voyage to the West Indies, and 
the question as to whether a man had so bound himself 
by contract that he could not manage an opposition line 

* Van Ness v. City of Washington, 4 Peters 232. 

46 2 G. & J. 137, Allegre v. Md. Ins. Co., Mayer and Taney against Mere- 
dith and Wirt; 164, Chesapeake Ins. Co. v. Allegre, Same counsel; 193 Mundell 
v. Perry, Taney and Mundell against Stonestreet; 218, Pennington v. Gittings, 
Winchester and Mayer against Taney and Heath; 235 Iglehart v. Mackubin, 
Magruder and Shaw against Taney and Brewer; 246, State v. Scribner, Taney 
and Gill against Mitchell and Gwynn; 254 State v. Weyman, Taney and Boyle 
against Magruder and Brewer; 311 Purviance v. Barton, Reverdy Johnson 
against Taney; 344, Williamson v. Allen, Scott and Taney against Meredith 
and Raymond; 382, David v. Barney, Meredith and Taney against Reverdy 
Johnson and Williams; 407, State v. Walsh, Taney and Gill. No opposing coun- 
sel; 431, Karthaus v. Owings, Mayer against Taney and Reverdy Johnson; 
482, Hamilton v. Warfield, Gill against Taney; 493 Glenn v. Smith, Taney 
and Reverdy Johnson against S. J. Donaldson and Belt; 3 G. & J. 8, State 
v. Dent, Taney and Gill. No opposing counsel; 12 McCormick v. Gibson, 
Taney and Scott. No opposing counsel; 95 State v. Scharff, Taney and 
Gill. No opposing counsel. 



98 ROGER BROOKE TANEY 

of stages from Baltimore to Washington — these were 
the subjects of the remaining cases. 

In 1831, he was appointed as Attorney General of the 
United States and resigned his position as Attorney 
General of Maryland on July 23. In that year, Taney 
argued three cases in the Supreme Court and six in the 
Court of Appeals. In the latter tribunal, he was an 
attorney in an ejectment suit, in an insurance case, in 
two cases concerning trust estates, in a dispute concern- 
ing a lottery ticket, and in a controversey over the admin- 
istration of an estate. 47 

In the Supreme Court, together with Scott, he argued 
against Wirt the case of Tiernan v. Jackson 48 concerning 
the rights of consignors and consignees of tobacco. He 
appeared with Stewart for the appellee and against 
Mayer and Wirt in the Marine Insurance case of Pa- 
tapsco Insurance Co. v. Southgate 49 and, together with 
Wirt, he argued against Mayer and Hoffman in the 
case of Sheppard v. Taylor 50 which concerned seamen's 
wages. The rights of twenty of the sailors had been 
assigned to Jonathan Meredith for the Bank of the 
United States and twenty-one others to Thomas 
Ellicott for the Union Bank, and Taney brought into 
the case on account of his relation to that Bank. 

With Taney's appointment as Attorney General of 
the United States he steps into the field of national 

47 3 G. & J. 142 Thomas v. Godfrey, Reverdy Johnson against Taney; 153 
Hoye v. Weaver, Anderson and Taney against Price and Yost; 163, Richard- 
son v. Jones, Speed and Reverdy Johnson against Taney, Gibbs and Alexander; 
205, City Bank v. Smith, J. I. Donaldson and Taney against Reverdy Johnson 
and Mayer; 320, Diffenderfer v. Winder, Dulany and Taney against Reverdy 
Johnson; 450 Bosley v. Chesapeake Ins. Co., Mayer, Reverdy Johnson and 
Taney against Glenn and Wirt. 

48 5 Peters 585. 

49 5 Peters 604. 
60 5 Peters 675. 



ROGER BROOKE TANEY 99 

politics. John H. B. Latrobe thus describes Taney as 
he appeared at this time: 51 "the tall spare man of stooping 
form, grave and quiet bearing and gentle mien, who, care- 
less of graces of oratory, appealed to court or jury in 
language so simple yet so clear that those who listened, 
almost fancied they could do so well themselves, so 
great was the grand lawyer's faculty of statement and 
argument." 

" 1 Md. Hist. Mag. 118. 



CHAPTER VI 

Attorney General of the United States and the 

Struggle with the United States Bank 

(1831-1833) 

Andrew Jackson was the staunchest of friends and had 
towards women somewhat of the chivalrous feelings of 
a knight errant, so that when some of the wives of the 
members of his cabinet would not exchange calls with 
Mrs. Eaton, the wife of the Secretary of War, the Presi- 
dent dispensed with the services of these Secretaries. 
Among those whose resignations were asked was John M. 
Berrien, the Attorney General, a friend of Calhoun. To 
fill the vacancy, Taney's name was suggested by Dr. 
William Jones of Washington, who was a native of 
Montgomery County and, as early as June 14, 1831, we 
find that Francis Scott Key 1 had been actively and suc- 
cessfully at work, presenting to the President the advisa- 
bility of appointing his brother-in-law. 2 On June 14, 
Key wrote Taney that he had held a conference with 
Berrien and told him that Taney " thought it desirable 
to the party that he should continue in the Cabinet." 
Berrien asked who had been talked of as a successor and 
Key replied, that he thought Buchanan was "more apt 
to be named" than any other; that Taney had been 
mentioned, but that Key did not believe the appoint- 
ment would be offered him. Berrien asked whether 
Taney would take it and Key told him that it was pos- 
sible Taney might do so, if he "saw a prospect of things 

1 Tyler, p. 167. 

2 5 Md. Hist. Mag. 23 and 24. The second letter is wrongly dated in Md. 
Hist. Mag. 

100 



ROGER BROOKE TANEY 101 

going on well." Key afterwards saw Edward Living- 
ston and told him that he had talked with several of the 
President's friends, including Taney, on the subject of 
continuing Berrien in office. Livingston said Taney had 
"been talked of for the place" and Key replied that 
Taney had heard so, but would prefer Berrien's being 
continued. 

On Key's return to his home in Georgetown, he found 
a letter from Jackson, requesting him to call at the 
White House and he went at once, although it was almost 
9 o'clock in the evening. Jackson then told Key that 
he wished to offer Taney the place of Attorney General 
and to have Key ascertain whether the offer would be 
acceptable to Taney. Key replied that he knew that 
Taney preferred Jackson's continuing Berrien in office. 
The President said, at once, very decisively, that, to do 
this "was entirely out of the question"; whereupon 
Key promised to write Taney, immediately, and obtain 
his views. He thought that Taney would, probably, 
accept, because he would "feel it a duty." Jackson 
then said, as Key wrote Taney, "it would give pleasure 
to his heart to understand that you would — that he 
would feel gratified to have you in his counsels, that 
your doctrines upon the leading constitutional questions 
he knew to be sound and your standing in the Supreme 
Court he well knew." 

Key urged Taney to reply promptly and not to "have 
any hesitation in accepting." Key continued 

I believe it is one of those instances, in which the General 
has acted from his own impulses and that you will find your- 
self, both as to him and his Cabinet, acting with men who 
know and value you and with whom you will have the influ- 
ence you ought to have and which you can do something ef- 
ficient with. As to your business, you can be as much in Balti- 



102 ROGER BROOKE TANEY 

more as you would find necessary, or desirable, with the under- 
standing that you were to come over, whenever wanted. This 
would only be, when you were wanted at a meeting of the Cabinet 
or anything important; on ordinary occasions and applications 
for opinions from the Departments, they could send you the 
papers to Baltimore and you could reply from there. As to the 
Supreme Court, it would, of course, suit you entirely and the in- 
crease in your business there would make up well for lesser matters. 

On June 16, Key learned that Taney had agreed to 
accept the position when tendered him. This decision 
"much gratified" Jackson, who sent word to Taney by 
Key that the Attorney Generalship need not interfere 
with his affairs in Baltimore and he need not even change 
his residence, if he did not wish 3 it. On June 21, 1831, 
Jackson appointed Taney to the vacant position and 
Edward Livingston, the Secretary of State, announced 
this fact to Taney on the same day. 4 Taney's accept- 
ance is dated June 24, but some little time was needed 
for him to arrange affairs in Baltimore and in the Court 
of Appeals at Annapolis and for Berrien to arrange the 
business of the office in Washington. On July 20, there- 
fore, Taney took the oath of office as Attorney General 
and continued to serve as such for a little over two years, 
until he was transferred to the Treasury Department on 
September 23, 1833. 5 Before he qualified in office, how- 
ever, Jackson's full confidence in him was shown, in a 
letter written at the President's direction to Taney by 
W. T. Barry, the Postmaster General, on July 10. 6 In 
this letter Barry inquired, confidentially, if Taney 
would be willing to permit the War Department also 

3 In a postscript to this letter Key wrote "There is a son of Caldwell's who 
is Berrien's clerk, you must continue him." 
* Tyler, p. 173. 13 Md. Hist. Mag. 162. 
5 M. L. Hinsdale's "President's Cabinet." 
6 13 Md. Hist. Mag. 164. 



ROGER BROOKE TANEY 103 

"to be placed under his control" for a few days, until 
Governor Lewis Cass, who had been appointed as 
Secretary of War, should arrive in Washington. Taney 
replied favorably and signalized his entry into the 
Cabinet by holding two portfolios; 7 though the War 
one was not arduous, since General McComb, the 
commander of the army, was at the national capital. 8 
It was felt to be a "notable tribute to his distinction as 
lawyer and his worth as a private gentleman that he was 
called by President Jackson to the office of Attorney 
General .... when he was known to belong to 
the constitutional school of which Chief Justice Mar- 
shall" was a most eminent member. 9 

From the very first days of his incumbency of office, 
Taney's influence with the President was recognized. 
James Buchanan promptly requested Taney's assist- 
ance in securing the ministry to St. Petersburg and, on 
August 2, 1831, Taney replied, from Washington, to 
the effect that he had already waited on Livingston in 
reference to the matter. 10 This early evidence of the 
friendship of the two men is interesting, when taken in 
connection with Buchanan's inaugural address, in its 
relation to the Dred Scott Case. 

Bassett is right in stating that Taney soon ranked with 
Amos Kendall, Frank P. Blair, and Andrew J. Donelson 
as one of the most influential persons witlrjackson and 

7 40 Niks Register, p. 361, July 31, 1831. 

8 On August 4, 1831 Taney wrote to F. Waters Griffith, in Baltimore, 
declining to recommend him to Livingston for a position, feeling it unwise to 
interfere in the arrangements of other members of the Cabinet. 

9 J. M. Carlisle in Memorial Meeting of the Bar of the Supreme Court 
December 6, 1864. Tyler, p. 490. 

10 Taney regretted that he could not go with Buchanan to Saratoga and 
told the latter that he may soon meet Livingston in New York. II Curtis's 
Buchanan 133. 



104 ROGER BROOKE TANEY 

that he "gave a vigorous mind, with a vast capacity for 
work, to the destruction" of the United States Bank. 11 
Contemporary opinion is seen in the gift of the degree 
of LL.D. to Taney by his alma mater, Dickinson College, 
that summer 12 and by the comment upon him made by 
Hezekiah Niles: 

His gentlemanly deportment, honorable private character, and 
acknowledged talents eminently fit him for the place to which he 
has been appointed. He has always been an ardent and decided 
politician — and stood at the head of the Federal party in Mary- 
land, so long as our political divisions were formed on old party 
grounds. The Richmond Inquirer says of Mr. Taney: "He is 
a lawyer of fine talents and high standing at the bar of the Supreme 
Court and as a politician, he is a warm friend of the Constitution 
of the United States in its true reading. He will carry into the 
Cabinet vigorous talents, sound constitutional principles and the 
most unblemished reputation. We shall hail his succession to 
the Cabinet, as a solid benefit to the Country." 13 

Niles was a little dubious as to the matter and added, 
"We shall see." Up to that time, the Attorney 
General had never been the leading politician of the 
Cabinet, but Taney speedily became so and delighted 
the Democrats, who had been doubtful what position 
he would take upon the great issue of the day — the re- 
charter of the United States Bank. Thus Cambreleng 
wrote Van Buren, on January 4, 1832 ; 14 "Taney, strange 
as it may seem, is the best Democrat among us" and, a 
month later, 15 with even greater enthusiasm, he wrote 
Van Buren again, that Taney was the "only efficient 
man of sound principles in the Cabinet." 

11 Bassett's Jackson, pp. 536, 540, 608, Bassett falls into the usual blunder 
of calling Taney "a resolute State's rghts man," which he was not. 

12 41 Niles Register, p. 154, October 22, 1831. 

13 40 Register 305, July 2, 1831. 

14 Bassett's Jackson, p. 613. 

15 February 5, 1832, Bassett's Jackson, p. 608. 



ROGER BROOKE TANEY 105 

On the issue of nullification, he stood strongly against 
the rightfulness of the South Carolina doctrine, but he 
was in Annapolis attending court, when the famous 
nullification proclamation was issued by the President 
and had no share in its composition. 16 

Taney's Federalist antecedents caused him to support 
the President so sincerely in his policy in regard to 
nullification that, as late as the time of Taney's transfer 
to the Treasury Department, nearly a year after the 
issuance of Jackson's proclamation, Van Buren sent 
Taney a letter of introduction for Benjamin F. Butler, 
who had just been appointed Attorney General and 
showed in that letter anxiety lest Taney's influence 
should spur Jackson on to measures against South 
Carolina, which should appear too strong to Van Buren. 
The latter wrote that 

I would be the last person 17 to advise to the omission of any 
act, or recommendation, which is absolutely necessary to the 
maintenance of the Federal Government in its just acts only; 
but I am, at the same time, anxious that those acts and recommen- 
dations should be limited by most necessity and that all high- 
toned positions should be avoided as far as possible. 

Taney believed that Jackson's policy was Federal and 
supported it as such; but he also believed in the policy 
of decentralization, which Jackson urged, especially in 
money matters. Like the President, he was a bitter 
enemy of the United States Bank. This hostility had 
begun in his experience, while he was counsel for Solomon 
Etting against the Bank and had been greatly increased 
through his connection with the Union Bank of 

16 In July 1861, he wrote that he "should have objected to some of the 
principles stated in it, if I had been in Washington," but did not specify his 
objections. Tyler, pp. 187, 189. 

17 13 Md. Hist. Mag. 169. 



106 ROGER BROOKE TANEY 

Baltimore, of which he had been counsel and director 
and in which he was still a considerable stockholder. 
The president of that bank was Thomas Ellicott, a 
member of a well-known Baltimore Quaker family. 
He and Taney became "close friends," in the words of 
J. H. B. Latrobe. 18 

That eminent lawyer was a director of the bank from 
1832 until 1837, when both he and Ellicott lost their 
positions therein. In his old age, Latrobe spoke of 
Ellicott as a "man of rare qualities, of extraordinary 
intelligence, and as fit to command an army, as to 
determine questions of bank policy." He swayed the 
actions of the other members of the board of directors. 
At this time, he was about fifty-five years of age. 19 He 
was six feet four inches tall, dressed in the garb of the 
Friends, and was a "great, thin, broadshouldered, 
person, with a massive, square brow, shadowing deep 
sunk eyes that lit up a face, whose stern determination" 
was emphasized by the "heavy jaw and lightly pressed 
lips," denoting "firmness and iron will." His complec- 
tion was "pale and unhealthy." He was a frequent 
visitor to Taney's house and there Latrobe saw him 
more than once and "on these occasions," Latrobe 
recorded, "I know the financial affairs were the subject 
of conversation." 

At the close of the War of 1812, the Second Bank of 
the United States had been incorporated and given a 
charter for twenty years. In Jackson's first adminis- 
tration, he showed his acute hostility to the Bank. In 
spite of that fact, in the early part of 1832, the Bank 
petitioned Congress to renew its charter and the bill 
extending the Bank's existence for a further period of fif- 

18 Semmes's "Life of Latrobe," p. 400. 
» Born 1777, died 1859. 



ROGER BROOKE TANEY 107 

teen years passed Congress and was sent to Jackson in 
June, 1832. This early passage of the new charter was, 
doubtless, in large measure, devised by Henry Clay and 
his friends to aid Clay's candidacy for the presidency. 
The election came in the autumn and Clay argued that 
a veto would be unpopular and that a signature of the 
bill would be an abandonment by Jackson of his prin- 
ciples. Either action by Jackson would promote Clay's 
election. Taney's opposition to the Bank had long been 
known. On December 7, 1831, General Samuel Smith 
wrote Nicholas Biddle, the Bank's President, that 
Jackson was wavering and that all the Cabinet except 
Taney were favorable to the Bank and, on February 
13, 1832, Charles J. Ingersoll wrote Biddle to the same 
effect. 20 

All the Cabinet except Taney advised Jackson to sign 
the bill. Taney, however, wrote Jackson, on June 27, 
from Annapolis, where he was engaged in a case before 
the Court of Appeals, a fifty-four page letter, urging 
that a veto message be sent. Jackson agreed with 
Taney and, on the latter's return to Washington, 
employed his aid in preparing the message vetoing 
the bill. 

Taney's Annapolis letter is so important as to deserve 
careful consideration. He maintained that the bill was 
unconstitutional and inexpedient and that the present 
Bank was unfit to receive a new charter. A bank "is not 
one of the substantive ends which the government is 

20 R. C. H. Catterall, "Second Bank of the United States," pp. 219, 226. 
Amos Kendall wrote in his "Autobiography" (p. 392) that almost all of Jack- 
son's supporters were Taney, Blair (the editor of the Globe), and its few con- 
tributors. Wm. G. Sumner believed that he traced the removal of the deposits 
to Kendall and Blair as the "moving spirits," with Reuben M. Whitney as a 
coadjutor ("Life of Jackson," p. 297). See Nicholas Biddle Correspondence, 
p. 183. 



108 ROGER BROOKE TANEY 

authorized to attain for the general welfare and, if it can 
constitutionally be established, it must be on the ground 
that it is among the means which Congress are permitted 
to use in executing the powers, specially conferred by 
the Constitution." Congress "can use those means 
only that the Constitution has in express terms author- 
ized, that is, the means necessary and proper to obtain 
the end." This necessity need not be absolute, a dis- 
cretion must always be exercised; for it is "impossible 
to draw a strict line," yet some means may be so far 
beyond that line that the fact may be seen without 
difficulty. The means granted must be "used, imme- 
diately, and directly and not remotely and by inference." 
The power to create carries with it the power to preserve. 
No tribunal can declare any of the laws void, since 
"Only the legislature, from the nature of the case, could 
decide what means are necessary and proper to obtain 
any legislative end." A Congress, however, cannot 
restrict its successors, nor can it give away, nor sell its 
rights. The United States Government may, within 
its "field of action, create a corporation ;" but may alter 
the charter at any time after the creation. Such a cor- 
poration, chartered by Congress, must be one needed as 
public agent, and, therefore, must be a public, not a 
private, corporation. The Supreme Court, in the case 
of McCulloh versus Maryland, merely said that the 
Federal Government had the right to establish proper 
agents for the collection and application of the revenues. 
Whether the Bank is constitutional is a political question 
— a question which does not depend on the powers of 
Congress "to create a corporation, but on the powers, 
privileges, and immunities, which it may lawfully confer 
upon a public agent." 21 

21 Tyler, p. 151. 10 Md. Hist. Mag. 24. 



ROGER BROOKE TANEY 109 

If Congress should create a Bank for that purpose, when one is 
not necessary, or confer on it peculiar powers and privileges to be 
used for individual emolument, beyond what its duty as a fiscal 
agent required, yet a judicial tribunal could not, on that ground, 
pronounce the act to be unconstitutional, because it is not within 
the province of judicial power to enter into such investigations. 

Congress may make of the Bank an "institution 
'appropriate' for the collection of the revenue, or the 
conveyance of it from place to place for public purposes;" 
but may not, "at the same time, give it a capital and 
clothe it with powers and privileges, which are not neces- 
sary to enable it to discharge its duty as a public agent 
and which render it altogether independent of the public 
will and enable a great monied aristocracy to combine 
together, and by concentrating their power, to exercise 
a baneful and corrupt influence on all the Departments 
of the Government." Whether such action "be called 
the abuse of a power granted, or the exercise of a power 
not granted, it would, in either case, be a violation of the 
Constitution." A Court could not inquire into the 
"degree of necessity," and there "would be manifest 
usurpations of power, beyond the reach of judicial cor- 
rections." 

So when the proposed charter was brought before 
Jackson, in his "legislative capacity," he was "called 
on to consider whether a Bank, with the powers and 
privileges contemplated by the Charter, is necessary." 
The degree of necessity should be "the more severely 
scrutinized by the Legislative Branch of the Govern- 
ment," since the Courts cannot give this scrutiny. The 
proposed charter is not "justified by the Constitution, 
because it confers powers and privileges not necessary 
and surrenders, for 15 years, part of the legislative power 
of Congress, of which Congress cannot divest itself." 



110 ROGER BROOKE TANEY 

When it is proposed to reduce the public revenue to 
16 million dollars annually, a capital of 35 millions is 
too great for the bank. The "excess gives an excess of 
power not justified by the Constitution." 

Secondly, it is not right for the Government to agree 
not to establish another bank for 15 years, since the 
public interest may require another. "Great monied 
aristocracies" are to be feared. Taney curiously viti- 
ates this part of his argument, by adding the statement 
that Congress cannot restrict the legislative power of 
its successors. 

Thirdly, it is not necessary to permit Branch Banks 
to be established in every State, possibly without the 
consent of the State. The Government only, and not 
the Corporation, should determine where the agent to 
convey the revenue is needed. The Bank may wish to 
"establish Branches, merely for the purposes of obtaining 
political influence, or of making gainful speculation for 
private profit, in places not required by the duties of 
their agency for the public." To permit it to act in this 
manner would be unconstitutional. 

Fourthly, it is not necessary that great banking powers 
be given to the "fiscal agent." The large bonus offered 
by the Bank for the charter showed that the Bank 
hoped for great advantages, "to be used for individual 
and private interest." It was contrary to the "spirit 
of the Constitution" to "sell for money the office of 
conveying the revenues from place to place." There 
should be "fair compensation" given for the Bank's 
services and no more. 

Fifthly, it was an "abuse of power and a violation of 
the spirit of equality to select by name" a "favored 
body of individuals" and to "give them high and 
valuable privileges," from which other citizens are 



ROGER BROOKE TANEY 111 

excluded." If an individual, for example, Nicholas 
Biddle, the Bank's president, should be constituted the 
public agent and given all these privileges, "everyone 
would be shocked at such a flagrant usurpation of 
power." No one would think that Congress could 
adopt Biddle, as "their only partner," to "convey 
public moneys" in a "great banking speculation." 
But, if Congress cannot do this in favor of him, or of any 
other individual, how can it be done in behalf of a dozen 
individuals, and, if not for a small number, then not for 
500 or a 1000? Congress can not "erect among us a 
privileged class of citizens, who are allowed to monopo- 
lize advantages which are denied to all other citizens 
of the United States," yet, in this bill, exclusive privi- 
leges were granted to the Bank's stockholders for their 
"private emolument." If these privileges may be 
granted for 15 years, why may not they be granted in 
perpetuity and hereditarily? The bonus is a sum paid 
by the stockholders for the charter privileges granted 
them by sale, for their "private and individual emolu- 
ment." "More is granted, therefore, than the public 
service requires." No competition is allowed for the 
purchase of these privileges and the renewal act is, 
consequently, unconstitutional. 

After these arguments, it is startling to find Taney 
continuing, with the statement that, "in examining the 
Constitutional questions, it will be seen that I have fol- 
lowed throughout the rule which I understand to be 
given by the Supreme Court, in the case of McCulloh 
versus The State of Maryland." To the ordinary reader 
the two lines of argument are contradictory. Taney 
claims they are supplementary and that the silence of the 
Court on other matters is "the strongest evidence that 
the ground taken by them was, in their opinion, the 
only one that could be defended." 



112 ROGER BROOKE TANEY 

The general welfare clause, neither "confers any new 
power on Congress, nor enlarges any before given." 
"If Congress needs more power, the people can give it, 
and they are the only judges competent to decide whether 
it is proper to be given." 

Such is Taney's constitutional argument — clever, labo- 
rious, and subtle, but specious, abounding in logical 
fallacies and special pleading, — we should call it dema- 
gogical, if it were not addressed to one man. The 
agreement of students of the financial history of the 
United States is so complete that Taney's position was 
unwise and that his legal argument is unsatisfactory 
that it seems unnecessary to give a full statement of 
reasons against his position here. 

Turning to the question of expediency, Taney main- 
tained that the Charter, even if constitutional, should be 
disapproved, since it granted powers "so vast and over- 
whelming, so liable to abuse and so intimately connected 
with the prosperity and welfare of every portion of the 
United States, and indeed of every citizen, that they 
ought never to be intrusted to an irresponsible corpora- 
tion, to be used as their private interests may dictate, 
regardless of the injury they may do to others." The 
Bank would have absolute dominion over the circulating 
medium of the country and could "throw pressure upon 
or exempt any particular place" at its will: could "bring 
ruin on any commercial city." Biddle answered yes, 
when he was asked by General Smith whether there were 
"few State Banks that the United States Bank might 
not have broken, if it had been disposed to do so." 
The Branches of the United States Bank are subject to 
the "control of the mother bank" and, consequently, the 
"mandate issued from the directors' room in Philadel- 
phia may be felt at the same moment, in every part of 



ROGER BROOKE TANEY 113 

the United States and the blow it inflicts be too sudden 
and unexpected to be resisted or counteracted." Why 
did this ''formidable political power, working through 
the press, seek a renewal of its charter so early? If the 
scheme be defeated, will the Bank consider the failure 
final, or will not the struggle be continued during the four 
remaining years of the first charter and the two subse- 
quent years allowed thereby to settle the Bank's concerns, 
unless it can, in the meantime accomplish its object?" 
The country is on the eve of a Presidential Election and 
the Bank hopes that the "President will yield up the 
opinions heretofore expressed by him, in order to secure 
his election. And, if his well known firmness and 
independence should disappoint their wishes, they hope, 
by combining with the other elements of opposition, to 
defeat his re-election and secure a President of the 
United States who is favorable to their views." The 
present session of Congress has shown that it is inex- 
pedient to "combine such a vast amount of separate 
individual interest in any of the fiscal operations of the 
government." If the public alone were concerned, the 
question could be settled without heat and excitement, 
but individual interests enter the situation. Biddle has 
been in Washington, working for the Bank. The stock- 
holders have no rightful claim on the government, for 
they enjoy all their privileges during the term of the 
present charter. Taney thought it a simple question 
"whether another agent as useful and less dangerous, 
can not be selected to carry the public revenue from 
place to place." 

The renewal of the charter would "give this influence 
such a power that the Government could not hereafter 
in any event, change its policy." After 15 years more 
of the Bank, its President would "have more influence" 



114 ROGER BROOKE TANEY 

than the President of the United States. "Congress 
could not govern the secret conclave in the directors' 
room; but would be in danger of being governed by it." 

This part of Taney's argument is artful, shrewd, and 
adroit. It is addressed with skill to Jackson, but it is 
a melancholy proof how far prejudice and antipathy 
can carry an honest man — for we must never forget that 
Taney, like his chief, was honest. 

Taney's third argument appeared to him to be suf- 
ficient of itself to cause a veto of the bill. The Bank 
was to pay a lump sum and then to be exempted from 
other taxation, National or State. The sum may be a 
"fair share of the public burden upon the private capital 
employed in the Bank," according "to the present scale 
of taxation;" but, in the next nineteen years, the situa- 
tion of the country may be greatly changed, for "heavy 
burthens" may become necessary through war, and it 
"may be necessary to add sorely to the burthens now 
borne by the State Banks." "Why," asks Taney, 
"should not the 28 millions in the United States Bank 
bear its share of the public burthen in times of war 
and distress?" Landholders and stockholders in State 
Banks, "who are generally men in moderate circum- 
stances," will pay taxes and why should the United 
States Bank, whose stock "is generally held by the 
most opulent monied men, many of them wealthy 
foreigners, be entirely free from the additional taxation?" 
The money of the citizens, employed in the State Banks, 
will be diminished in value, while "the money of the 
opulent citizens and of the wealthy foreigners" is not 
to be "allowed to feel the pressure which bears on the 
rest of the community." No other "private property 
in all the United States" is so protected. Of course, 
the government property in the Bank should be freed 



ROGER BROOKE TANEY 115 

from taxation; but the property of individuals in the 
Bank is private and should be taxed. Over this part of 
the argument, one sees the shadow of the tall form 
of Thomas Ellicott, President of the Union Bank of 
Baltimore. 

Finally, the present corporation should not have a 
renewal of its charter, since: (1) other citizens ought 
to have an equal opportunity of obtaining these advan- 
tages; (2) the application on the eve of a Presidential 
election shows that the Bank designs "to influence the 
public servants in a great question of public concern, 
by exciting their fears of the political influence of this 
mighty engine of power" — an act which "should re- 
ceive the marked disapprobation of the constituted 
authorities;" (3) the "funds of the Bank have been freely 
used for the purpose of obtaining political influence and 
power, and those who have been responsible for this 
course should receive no "new favor" as a "sanction 
for their conduct." 

The United States Bank notes were a "public conve- 
nience" but the same convenience may be had otherwise; 
for it is the "pledge of Congress to receive these notes for 
public dues that gives them their universal character 
and, if the same pledge were given the notes of the most 
obscure State Bank, its notes would, immediately, become 
equally current in every part of the United States." 
There might be independent banks, each with a moderate 
capital, established at suitable places, "whose notes, 
with such a pledge, would be made current" and would 
be equally sound and general with those of the United 
States Bank; while these Banks would not have means of 
exercising the "dangerous and corrupt political influence, 
with which the present mammoth monopoly is able to 
pervade the United States." These banks would check 



116 ROGER BROOKE TANEY 

one another and "prevent sudden and extravagant 
increase of discounts and issues of paper, which the 
unchecked power" of the United States Bank permitted. 
In these words, we behold the germ of the "pet bank" 
scheme. 

Taney concluded this remarkable document with the 
following sentences; "I respectfully advise that the 
proposed bill be not approved. And as the frank and 
decided course which has marked your conduct through 
your whole life, is, I have no doubt, not only the right one 
in morals, but the wisest in public affairs, I think the pro- 
posed charter ought to be met, on every ground on which 
you may deem it liable to objection." Jackson 22 vetoed 
the bill to recharter the Bank and long afterwards 23 
Taney defended this action in a letter to Van Buren, 
which is of considerable interest, because the writer was 
at the time of writing the Chief Justice of the Supreme 
Court. Jackson "had been charged with asserting that 
he, as an executive officer, had a right to judge for him- 
self whether an act of Congress was constitutional or 
not, and was not bound to carry it into execution, if 
he believed it to be unconstitutional, even if the 
Supreme Court decided otherwise." Taney distinguished 
Jackson's act as coming out of "his rights and his duty, 
when acting as a part of the legislative power, and not 
of his right or duty, as an executive officer. For, when 
a bill is presented to him and he is to decide whether, 
by his approval, it shall become a law or not, his power 
or duty is as purely legislative as that of a member of 
Congress, when he is called on to vote for, or against, a 
bill. If he has firmly made up his mind that the pro- 

22 Taney read and approved the veto message before it was sent in. 10 Md„ 
Hist. Mag. 24. 

23 June 30, 1860, 10 Md. Hist. Mag. 23. 



ROGER BROOKE TANEY 117 

posed law is not within the powers of the general govern- 
ment, he may, and he ought, to vote against it, notwith- 
standing an opinion to the contrary has been pro- 
nounced by the Supreme Court. It is true that he may, 
very probably, yield up his preconceived opinions, in 
deference to that of the court ; because it is the tribunal 
especially constituted to decide the question in all cases 
wherein it may arise and, from its organization and 
character, is peculiarly fitted for such inquiries. But if 
a member of Congress, or the President, when acting in 
his legislative capacity, has, upon mature consideration, 
made up his mind that the proposed law is a violation 
of that Constitution he has sworn to support, and that 
the Supreme Court had, in that respect, fallen into error, 
it is not only his right, but his duty, to refuse to aid in 
the passage of the proposed law." Jackson's position 
was not new, for every Court before which the Sedition 
Act was brought had sustained that law, until a "major- 
ity in Congress refused to continue the law, avowedly 
upon the ground that they believed it to be unconsti- 
tutional." "But General Jackson," Taney continued, 
"never expressed doubt as to the duty and the obliga- 
tions upon him, in his executive character, to carry into 
execution any act of Congress regularly passed, what- 
ever his own opinion might be of the constitutional 
question. And, at the time this veto message was 
written and sent, he was carrying into execution all the 
provisions of the existing charter, and continued to do so, 
until it expired. And, when the deposits were removed 
they were not withdrawn upon the ground that the 
charter was unconstitutional and void, but, expressly, 
upon the ground that it was still in force and would 
continue to be so, until the expiration of the term 
limited by the law itself." 



118 ROGER BROOKE TANEY 

The presidential campaign which followed Jackson's 
veto of the recharter was fought out largely on the issue 
of the continuance of the Bank, which institution entered 
with great energy into the contest. The result was an 
overwhelming victory for Jackson, who received 239 
out of 288 electoral votes. Naturally, he took this as 
a vote of approval of his policy as to the Bank and, as 
Taney had been his chief adviser in the veto, Jackson 
"relied especially on the faithfulness and the sagacious 
statesmanship," of the Attorney General, 24 to use Tyler's 
words. 

In December, 1832, Jackson sent his first message to 
Congress after his reelection and startled the country, 
by intimating that there was some question as to the 
entire safety of the public deposits in the United States 
Bank. He recommended an inquiry into the "transac- 
tions of the institution," so as to determine whether it 
would be "longer a safe depository of the money of the 
people." He also recommended the sale of the $7,000,000 
of stock in the Bank held by the United States, as well 
as all stock held in other joint stock companies, so as to 
sever the Government from all private corporations. 

The House of Representatives refused to appoint a 
select committee to inquire into the condition of the 
Bank and referred the matter to the Committee of 
Ways and Means, which reported that it was safe to 
continue the deposits in the Bank. The report was 
adopted by a vote of 100 to 46. Latrobe maintained 
that the removal of the deposits from the United States 

"Tyler, p. 191. On p. 190, Tyler tells a contemporaneous incident, 
illustrating Taney's kindness of heart. While going to his office on a cold 
morning, he saw a little negro girl shivering in the cold wind and vainly striving 
to fill a tin bucket with water from a pump. He took the pump handle from 
her, filled the bucket, and, placing it upon her head, said: "Tell whoever sent 
you to the pump, that it is too cold a morning to send such a little girl. " 



ROGER BROOKE TANEY 119 

Bank and the selection of State Banks — the so-called 
pet banks — to receive these deposits were "promoted, 
if not originated," by Thomas Ellicott, and Latrobe's 
position was such as to make his assertion on this matter 
carry much weight. 25 

On March 12, Jackson had an interview with Taney 
on the subject of the Bank. 26 Afterwards, Jackson 
carefully looked into the Charter of the Bank of the 
United States and its Reports. That night, he sat 
down and wrote Taney as to the powers of the President 
and Secretary of Treasury over the Bank. The former, 
he concluded had "only power to order a scire facias to 
repeal its charter, when the facts warrant it." The 
latter had "the sole power" to "manage the deposits," 
and Jackson asked Taney merely for a written opinion 
concerning the violation of the charter, as "disclosed in 
the reports" of the Ways and Means Committee, 
leaving the Secretary of the Treasury to "his own 
deliberations as to the removal of the deposits and where 
to intrust them." Jackson was confirmed in his "former 
opinion of the incapacity of the Bank to continue specie 
payment for one month, after it meets the payment of 
the public debt;" but found that "much perplexity will 
occur in finding safe deposits for the public funds." 
This matter must be "well weighed" and Jackson wished 
to "see and converse" with Taney thereupon. 

A week later, Jackson 27 addressed each member of 
the cabinet upon the subject of the Bank, requesting a 
"free discussion" and a reply in writing. He told them 
that the results of his "own reflections were: (1) that 
the charter of the present Bank ought not to be renewed ; 

25 Semmes's Latrobe, p. 400. 

26 4 Md. Hist. Mag. 297. 

27 4 Md. Hist. Mag. 298. 



120 ROGER BROOKE TANEY 

(2) that he ought not to assent to "any bill authorizing 
the establishment of a Bank out of the District of 
Columbia;" (3) that such a Bank should be allowed to 
establish Branches in the different States, only with their 
assent and "under such restrictions as the several 
States may think proper to impose," that the "Gov- 
ernment shall have the right to appoint the President 
and as many directors .... as will secure fidel- 
ity and a thorough knowledge by the proper officers of 
the Government of its transactions," and that "Con- 
gress should retain the right to repeal or modify the 
charter, from time to time;" (4) that such an institu- 
tion ought not to be recommended, until a full and fair 
experiment has been made to carry on the fiscal affairs 
of the Government without a national Bank of any 
description; and (5) that there should be devised "a 
system for the deposit and distribution of the public 
funds, through the agency of the State, to go into 
operation" at a suitable future time. 

After the report of the Committee on Ways and Means 
had been adopted, Taney wrote a 26 page letter to 
Jackson, on April 13, 1833, upon the subject of the 
"deposites," as he always spelled the word. He main- 
tained that the question was still open, since the judg- 
ment of the House was "influential, not controlling;" 
that the President "must act by the dictates of his own 
judgment;" and that the minority report against the 
Bank was "correct." The ability of the Bank to meet 
its engagements is "not really the only point of inquiry," 
for the corporation 28 was created to obtain "a safe and 
useful agent for the Treasury Department, through 

28 Taney loved to use that word, as if it contained some subtle reflection 
against the bank. Nicholas Biddle (Biddle Correspondence, p. 205) "Taney 
is for immediate withdrawal." 



ROGER BROOKE TANEY 121 

which the government might more conveniently collect 
and distribute the revenue, according to the exigencies 
of the public service." Therefore, it must apply its 
funds according to the directions of the Government. 29 
The money was not deposited for the benefit of the 
stockholders, but "for the safety and convenience of the 
Government." Consequently, the Bank must show not 
only capacity, but also fidelity, and must not "hide 
studiously" from the public "important money trans- 
actions." Taney recalled Jackson's attention to the fact 
that the Secretary of the Treasury, by article 16 of the 
Charter, had power to remove the deposits. The 
doctrine of the first part of the letter was novel and 
strained, imputing to the Bank limitations never before 
suggested. 

Taney's second head was that the conduct of the Bank 
had been such that the Government could no longer 
rely on it, as the "agent for carrying into effect its fiscal 
arrangements," and that "other agents should be forth- 
with provided." The Corporation had been guilty of 
"gross and palpable violations of duty to the public, 
in matters sufficiently important to justify the Executive 
in withdrawing from them its confidence and placing the 
money of the United States in the hands of agents more 
worthy of the trust." As proofs of this statement, 
Taney alleged: (a) that in July, 1832, the government 
had to postpone the payment of $6,000,000 on the debt 
for three months, although the Bank, at that time, had 
nine millions of public money out at loan. The money 
was a deposit, not a loan, and no interest was paid, nor 
any consideration given for it, so that the Bank ought 
always to have been ready to repay the money and a 

"Taney, like most writers of today, habitually omitted any qualifying 
adjective, such as Federal or National. 



122 ROGER BROOKE TANEY 

failure so to do at once was a "gross abuse." (b) That 
the great increase of loans in 1831 showed "unjustifiable 
overtrading." The loans increased 50 per cent in 1831 
and $7,000,000 more were loaned between January 
and June, 1832, while the recharter bill was pending. 
"Charity itself cannot suggest a justifiable inducement 
for the flood of Bank accommodation." (c) The conduct 
of the Bank, in regard to the 3 per cent stocks, was enough 
to condemn it, for the Government Directors were not 
told of the transaction, (d) The money of the cor- 
poration had been employed to influence the press — a 
course of conduct "pregnant with so much evil that it 
cannot be too severely and pointedly reprobated." 

Next Taney maintained that, since the Bank had 
"profusely lavished its money to obtain political power" 
in the Presidential election, i.e., to defeat Jackson, he 
ought not to assent to a renewal of the Charter under 
any circumstances, or with any modifications, "even if 
the constitutional objections could be surmounted." 

Fourthly, the Bank was not constitutional, if the 
"fiscal operations" of the Government could be "carried 
on without it and a full and fair experiment ought to be 
made to prove this." A Bank would always be the 
"point upon which the monied aristocracy would con- 
centrate its power." 

In the fifth place, Taney considered what system 
should be adopted. "The one you suggest," though we 
fear that the suggestion was really made by Taney 
to Jackson and not vice versa, — the "State Banks, 
judiciously selected and arranged," will furnish a "cur- 
rency, as wholesome and stable as that of the United 
States Bank." Jackson may well proceed to select these 
banks and make arrangements with them and may then 
discontinue deposits in the Bank of the United States, 



ROGER BROOKE TANEY 123 

making a report to Congress, after he had done so. A 
"fierce and desperate struggle" will be made by the 
Bank; but the "purity of our institutions and the best 
interests of our country call for prompt action and deci- 
sive measures on the part of the Executive." He may 
"rely for support on the intelligence and patriotism of the 
people." Another letter, upon the same subject, cover- 
ing 15 pages, was written by Taney to Jackson on April 
27. The suggested plan had difficulties, in that the 
Bank of the United States, through its immense capital 
and many Branches, would oppose the State Banks, 
"derange the currency, and promote individual dis- 
tress." Taney took a high moral tone and said that, 
"if the Bank has this power, the United States ought not 
to expect them to use it." He asks: "Can a corpora- 
tion which has received so many favors and so much 
indulgence from government forget the moral, legal, 
and political duties and injure the community it was 
created to serve?" I hate to say it of a man, who was 
in many respects admirable, but this question inevitably 
reminds one of Mr. Pecksniff's utterances. 

The prevailing impression that the Bank will do harm 
is an "abundant proof, that the Corporation has, by its 
conduct, forfeited the confidence and esteem of the 
people." The Government must not count on the for- 
bearance of the Bank. If the Bank has such power, it 
is "dangerous to the liberties of the country and ought 
not longer to be tolerated." Even if the deposits are 
withdrawn, the Bank must still give facilities for trans- 
ferring the funds of the United States from place to place 
and that institution will remain at the mercy of the 
Government, for the removal of the deposits will not 
change the Charter. The fourteenth section of the 
Charter stated that the Government would receive 



124 ROGER BROOKE TANEY 

United States Bank notes in payment of dues to the 
United States, unless Congress voted otherwise. This 
"valuable privilege" was a consideration for the transfer 
of funds, which was an obligation of the Bank under 
section fifteen of the Charter. Indeed, how could the 
Government receive United States Bank notes at New 
York for the New Orleans Branch, unless the Bank 
agreed to the transfer of Government Funds? 

Such arguments had much effect in stimulating, 
directing, and strengthening Jackson's purpose to injure 
the Bank. 

In June, 1833, Edward Livingston relinquished the 
Secretaryship of State to become minister to France. 
Two months later, on board the ship Delaware, he wrote 
Taney 30 to thank him for a farewell letter and spoke in 
words charged with much feeling, of Taney's acquain- 
tance, as "among the most pleasing" recollections of 
his cabinet career, and of his "high gratification" that 
he left a "favorable impression on the mind of one so 
well qualified to judge." 

McLane, who did not favor the plan of removing the 
deposits, was transferred from the Department of the 
Treasury to that of State and his place was filled by 
William J. Duane, a Philadelphia lawyer. 

On March 3, 1860, Taney wrote Van Buren, that 31 
Andrew Stevenson, Frank P. Blair, and William B. 

30 13 Md. Hist. Mag. 162. 

31 10 Md. Hist. Mag. 14. Van Buren in his Autobiography (American 
Hist. Association Report, 1918, vol. II, p. 596, 597) states that in November 
1832, Jackson was already considering changing Taney from the Attorney 
Generalship and that on the 26th. of that month McLane wrote Van Buren 
that the appointment of B. F. Butler as Attorney General would satisfy him 
and that he would be better satisfied could Taney go abroad — which suggests 
that he may have been considered for an appointment as a foreign minister. 
Van Buren replied to McLane (p. 598) that "I had thought of suggesting the 
propriety of bringing Mr. Butler into the office of Attorney General, if Mr. Taney 



ROGER BROOKE TANEY 125 

Lewis asked his consent to present his name to Jackson 
for the Treasury Department when McLane retired; 
but that he refused, saying that "it was one of the last 
offices in the government that I would willingly take." 
Jackson "never mentioned the subject of the vacancy 
in the Cabinet" in Taney's hearing, which "unusual 
reserve on his part rather annoyed" Taney, as was 
natural. When Stevenson finally told Taney that Duane 
was to be appointed, Taney was much surprised and 
wrote that he "never could understand by what influence 
the President was so much misled as to appoint Mr. 
Duane," though he supposed the suggestion came from 
McLane, who was rather friendly to the Bank. 

Some years after Duane's removal from office he 
printed a volume entitled "Narrative and Correspon- 
dence concerning the Removal of the Deposites and 
Occurrences Connected therewith," 32 in which book he 
stated that he had been invited to become Secretary of 
the Treasury on December 4, 1832, and had accepted 
the invitation on January 30. In view of these facts, it 
is not surprising that Jackson kept silence as to his 
plans. Duane was commissioned on May 29 and took 

could be provided for in a manner more acceptable to himself. " In September 
1833, Van Buren (pp. 593 and 605) told Jackson that he had thought of Taney 
for the Treasury, but had not spoken of it, because McLane objected and 
determined to bring in Duane. Taney and McLane were rather unfriendly, as 
early as August 11, 1831, when the latter wrote Van Buren: "You must not 
ascribe it to suspicion, when I assure you that Mr. Taney fights shy of me. He 
was the only one of the Cabinet who kept off and him I did not see, until we 
met yesterday at the President's in council. We were always on good terms and 
I know of no cause of separation now, but his fears on a certain subject." 

In later years, when Van Buren was President he came to Baltimore to 
attend the funeral of General Samuel Smith. McLane and Taney were also 
present and Taney said, after the services, to Van Buren, "I saw that you and 
your old friend McLane did not recognize each other; certainly, no advance 
in that direction could be expected from you" (p. 613). 

32 Philadelphia, 1838. 



126 ROGER BROOKE TANEY 

office on the following day. On June 1, Reuben M. 
Whitney, at Jackson's request, called to say that the 
President was about to cause the removal of the deposits, 
that Taney and William T. Barry, the Postmaster 
General, had come out like men for the measure, McLane 
and Cass were against it and Woodbury was vacillating. 
Duane could not conceal his mortification at this "at- 
tempt to reduce him to a mere cipher" and resolved he 
would act according to his own judgment. 

He was known to be opposed to the Bank, but he 
showed himself also opposed to the removal of the 
deposits and to the employment of "State Banks as 
fiscal agents of the Government to receive and disburse 
the revenue." Jackson wrote him from Boston on 
June 26, to the effect that he thought it desirable to 
appoint a "discreet agent to inquire into the practica- 
bility of making such an arrangement with the State 
Banks," but Duane was disinclined to do this — and 
wished to leave the matter to Congressional action, at 
the session which would begin in the following December. 
Jackson was not willing to wait. He went to the 
Ripraps off Old Point Comfort, to enjoy a summer 
vacation. On the morning of his departure, he dis- 
cussed the Bank's affairs with Taney. Taney could not 
await his return, before renewing his urgency for the 
removal of the deposits. Accordingly, from Washington 
on August 5, he wrote Jackson, 33 to state "without 

33 Tyler, p. 195. Wm. G. Sumner, in his "Life of Jackson," p. 301, calls 
this a "sycophantic letter" and states that the removal of the deposits was 
unwise and unnecessary, as the charter would soon expire. D. R. Dewey 
"Financial History of the United States" speaks of Taney's able support and 
counsel to Jackson, p. 205. Van Buren in his Autobiography (Am. Hist. 
Ass. Report, 1918, vol. 11, p. 657) states that Jackson decided in substance, to 
remove the deposits three months before Taney came into the treasury. This 
period, assigned from memory, is too long. 



ROGER BROOKE TANEY 127 

reserve" his opinion on the present condition of affairs 
in relation to the Bank. In his previous "official 
letters," Taney had urged that the deposits be placed 
in the State Banks and he was anxious that this measure 
be adopted before Congress assemble, so that the 
members might "be among their constituents," when the 
decision was announced and might bring with them, 
when they come to Washington, "the feelings and senti- 
ments of the people;" for Taney relied, "at all times, 
with confidence, on the intelligence and virtue of the 
people of the United States." The obstacles, which had 
arisen, made the course a harder one to pursue, but did 
not change Taney's mind in regard to it. "The con- 
tinued existence of that powerful and corrupting monop- 
oly," Taney wrote, "will be fatal to the liberties of the 
people" and he believed "no man but yourself is strong 
enough to meet and destroy it." Such flattery pleased 
Jackson, even when accompanied by such overdrawn 
statements as that, if Jackson did not remove the depos- 
its, the Bank will be too strong for his successor. 
Taney was sincere, but somewhat hysterical, when he 
promised to "hazard much, in order to save the people 
of this country from the shackles which a combined 
monied aristocracy is seeking to fasten upon them." 
He "should be deeply mortified, if, after so many 
splendid victories, civil and military," Jackson should, 
in the last term of his public life, meet with defeat. 
With skilful art, Taney continued his argument. Jackson 
had spent a life of so many hazards in the public service, 
and Taney had "doubted whether your friends, or the 
country, have a right to ask you to bear the brunt of 
such a conflict." If Jackson had any doubts, he might 
await Congressional action; but Taney's "own opinion 
is firm in favor of the removal, as soon as the proper 



128 ROGER BROOKE TANEY 

arrangements can be made." Modestly, Taney added 
that he had "far more confidence" in Jackson's decision 
than in his own, and would acquiesce, if Jackson should 
determine not to act. Taney would, "promptly and 
willingly," render any service in his power, and though 
he should regret any change in the Cabinet and neither 
desired, not felt qualified to fill the chair of Secretary of 
the Treasury, as Jackson had suggested, he should not 
shrink from the responsibility, if, in Jackson's opinion, 
the "public exigency requires me to undertake it." 

Jackson did not take long to reply to this letter, but 
sent his answer from the Ripraps on August 11. The 
epistle 34 is a long one, filled with accusations against the 
Bank, but the gist of it is contained in the first four 
paragraphs. Jackson had "perused with much pleas- 
ure" Taney's letter and was "still of opinion that the 
public deposits ought to.be removed, provided a more 
safe depository, and as convenient for carrying on the 
fiscal operations of the Government, can be found in 
the State Banks, as is now found, in the United States 
Bank." It is, therefore, manifest that Jackson had not 
yet been entirely converted to Taney's State Bank plan. 

Jackson goes on to declare that 

The United States Bank attempts to overawe us. It threatens 
us with the Senate and with Congress, if we remove the deposits. 
As to the Senate, threats of their power cannot control my course, 
or defeat my operations. I am regardless of its threats of re- 
jecting my nominations. If Mr. Duane withdraws, you can, 
under an agency, carry on and superintend the Treasury Depart- 
ment until nearly the close of the next Session of Congress, before 
which the battle must be fought and all things settled, before your 
nomination would be sent in. 

34 Tyler, p. 198. 4 Md. Hist. Mag. 300. 



ROGER BROOKE TANEY 129 

Thus he forecast the actual course of events and he 
was serene. "As to the threats about Congress, it may 
be observed, the bank having been chartered contrary 
to the powers of Congress as defined by the Constitution, 
may find, when once the deposits are removed for cause, 
that Congress is not competent to order the deposits to 
be restored to this unconstitutional and corrupt deposi- 
tory, but must find another, and that can only be the 
State banks; there is no other: more of this when we 
meet." Taney's heart must have bounded with joy 
when he read this sentence, for it showed that but little 
more urging was necessary to cause Jackson to adopt 
the State Bank plan. 

Bassett writes 35 Taney's "mental acumen can not be 
denied " and his pertinacity was equally marked. When 
Jackson returned from the Ripraps, Taney had further 
private conferences with him, as a result of which at 
Jackson's written request, made on September 15, 
Taney prepared a paper on the change of deposits, a 
step which Jackson had at last agreed to take. Jackson 
grimly wrote that, if "Duane will not agree to carry 
into effect these conclusions and remain, the sooner he 
withdraws, the better." 36 

On September 17, Taney had the paper ready and 
transmitted it to Jackson, who adopted it as his own. 37 
On the same day, Taney also wrote Jackson, asking him 

35 "Life of Jackson," p. 647. 

36 McMaster's "History of United States," VI, 189. 

37 On November 30, 1833, John Quincy Adams wrote in his Diary, vol. 
10, p. 41 : that he heard that Van Buren said that "Taney's exposition of the 
reasons for removing the deposits was the greatest State paper that had been 
produced since the existence of the Federal Government." Adams dryly 
added "If Van Buren said so, it must have been because he wrote it, or a 
great part of it, himself." Thorpe "Statesmanship of Jackson" writes, p. 260, 
that, "read in connection with the history of the times," the order to remove 
the deposits "is seen to be a State paper of vast importance." 



130 ROGER BROOKE TANEY 

to name the day for changing the deposits. He would 
be ready on October 1, and added "I am fully prepared 
to go with you firmly through this business and to meet 
all its consequences." Jackson endorsed on this letter 
"to be held with my private papers, as evidence of his 
virtue, energy, and worth." 

On the following day, the paper was read to the Cabi- 
net, announcing the change of system and fixing on 
October 1, as the day when it should go into effect. 
After the paper was read, and was being printed in the 
Globe, the Government newspaper, William B. Lewis 
was concerned lest Cass and McLane, who were not so 
rabidly opposed to the Bank as the rest of the Cabinet, 
would resign, rather than be responsible for the removal 
of the deposits. He spoke of his fears to Frank P. 
Blair, the editor of the Globe and Blair, thereupon, 
showed the paper to Jackson, and told him what Lewis 
had said. Jackson promptly replied that he did not 
want anyone to be responsible for his acts and asked to 
have the paper read to him, which being done, he inserted 
a sentence assuming the sole responsibility. Blair then 
read the corrected copy to Taney who was puzzled, when 
he heard the inserted sentence. On being told the 
authorship of it, he replied it would be better that Cass 
and McLane "should leave the Cabinet than remain in 
it with feelings of hostility to so cardinal a measure, 
that it was better to encounter their hostility out of the 
Cabinet than in it." 38 

38 Tyler, p. 204. Blair's account, in a letter written to Van Buren on 
November 13, 1859, is that Jackson at the Ripraps dictated the original of the 
paper, which was revised by Taney, so as to give it "a calm jud ; cial aspect, 
instead of that of a combative Bulletin" (Van Buren's Autobiography, Am. 
Hist. Ass. Rep., 1918, vol. II, p. 607). When Blair took the printed paper to 
Taney's house, Donelson was present. Taney put a "segar in his mouth and 
his feet upon the writing table," he "prepared to enjoy his first State paper in 



ROGER BROOKE TANEY 131 

Taney's apprehensions were groundless, however, for 
both of the Secretaries just named supported the 
President henceforth. 39 Macdonald 40 ably discusses this 
paper and the situation which it created. The paper, 
in his opinion, was the "most explicit statement we have 
of Jackson's theory regarding the status and function 
of a cabinet officer in our constitutional system. In his 
view, the head of a department is the agent, through 
whom the President acts in matters relating to that 
department. As such, he may properly hold and express 
an independent opinion on any questions regarding 
which his advice is sought. The President, however, 
is the responsible head of the administration and the 
acts of the cabinet are his acts. In the event, accord- 
ingly, of an irreconcilable difference of opinion between 
the President and his Cabinet, the will of the President 
must prevail and, if the Cabinet officer cannot submit, 
he should resign and may be removed. The fact that 
the Secretary of the Treasury was required by law to 
report to Congress, instead of to the President, did not, 
in Jackson's opinion, exempt him from the obligation 
to support the President in matters of public policy. 
Whatever the circumstances of this particular case may 
have been, the doctrine was sound constitutional law 
and is neither dictatorial nor imperialistic. How far the 
thing was originally Jackson's own cannot be deter- 
mined. Taney was, undoubtedly, Jackson's principal 

print." He said to Donelson: "Now, Mr. Secretary, let us hear how it reads 
for the public." When Donelson came to the responsibility passage, Taney 
interrupted him, saying: "How under heaven did that get in?" Blair told 
him and Taney replied "This has saved Cass and McLane. But for it, they 
would have gone out and been ruined, — as it is they will remain and do us 
much mischief." 

39 See 10 Md Hist. Mag. 16 for Taney's distrust of McLane. 

40 " Jacksonian Democracy" in American Nation Series, pp. 227-236. 



132 ROGER BROOKE TANEY 

adviser at this time, but the President's adoption of 
Taney's statement of it made it his own." With this 
summing up of the case, the verdict of history has agreed 
as it has also agreed with Macdonald's further conclusion 
that, "in directing the removal of the deposits, Jackson 
undoubtedly acted within his naked rights as executive 
head of the Government, though for the action, from any 
other point of view, there can be little save condem- 
nation." 

On the next day, 41 Jackson wrote Van Buren: "Mr. 
Taney is a sterling man. You would have been de- 
lighted with him, had you been present." Ten days 
later, he wrote again, "Mr Taney is a host. His 
energy, combined with his clear views, will enable him 
to carry into effect the change" in the deposits. Duane 
refused to execute this order or to resign, and, on the 
23rd of September, Jackson removed him from office 
and bluntly wrote Taney: "Having informed William J. 
Duane, Esq., this morning that I have no further use for 
his services as Secretary of the Treasury of the United 
States, I hereby appoint you Secretary in his stead, and 
hope you will accept the same and enter upon the duties 
thereof henceforth, so that no injury may accrue to 
the public service." 42 Taney's acceptance has not been 
found; but, on the succeeding day, he entered upon the 
duties of the office. 

Taney's first appearance before the Supreme Court as 
Attorney General occurred on January 7, 1832, and he 
appeared at two terms of that Court in thirty-one cases, 
while holding that office. Of these cases, eight were in 
his private practice 43 and some of these cases were impor- 

41 10 Md. Hist. Mag. 15. 

42 Tyler, p. 205, 4 Md. Hist. Mag. 302. 

43 (1) Oliver v. Alexander, 6 Peters 143, Action of Case. Hoffman against 
Wirt and Taney; (2) Conard v. Pacific Insurance Co., 6 Peters 262, Taney 



ROGER BROOKE TANEY 133 

tant ones. His incessant industry is shown by his 
large practice at this time. On February 10, 1833, 
Mr. Justice Story wrote Judge Fay 44 of hearing "fine 
arguments from Attorney General Taney." 

Taney's official opinions occupy nearly 100 pages of 
the first volume of the Opinions of the Attorney 
General. 45 They cover all sorts of cases. 46 Some dia- 

against Ogden and Sergeant; (3) Gassico v. Ballon. 6 Peters, 760 — averment of 
citizenship — Taney against Key; (4) Strother v. Lucas, 6 Peters 763, Taney 
and Benton against Wirt; (5) Douglass v. Reynolds, 7 Peters 113 — a guarantee 
case — Jones against Taney, (6) Barron v. Baltimore 7 Peters 263. Mayer 
against Taney and Scott — stopped by the Court — The Fifth Amendment to 
the Federal Constitution limits the United States not the State; (7) Living- 
ston's Lessee v. Moore 7 Peters 469, — ejectment — Ingersoll and Taney against 
Binney and Sergeant; (8) Scholefield v. Eichelberger 7 Peters 586, — illegal 
contract during the War of 1812, Donaldson and Taney against Reverdy John- 
son and Magruder. 

«II Story's Story 122. 

45 Pp. 777-868. Berrien's last opinion is dated April 2 and Taney's first 
July 28, 1 83 1 . His last is dated September 20, 1 833 

46 Criminal cases constituted 4 of those argued for the National Govern- 
ment: two of which were for robberies of the mail (U. S. v. Mills, 7 Peters 
164 and U. S. v. Wilson, 7 Peters 150), and two for forgery (U. S. v. Brewster 
7 Peters 164, U. S. v. Abel Turner, 7 Peters 132). In one of the latter cases it 
was decided that, under the Charter of the Bank of the United States, a person 
purporting to issue a false bill is liable to indictment, if the persons whose signa- 
tures were forged, were not in the Bank as officers. Taney lost the case of 
Tobias Watkins, who charged that he had suffered illegal imprisonment 
(7 Peters 568. Brent and Coxe were opposing counsel). Two cases involved the 
seizure of sugar imported (Barlow v. U. S. 7 Peters 404. Morton and Ogden 
were against Taney, U. S. v. 84 Boxes of Sugar, 7 Peters 453. Mayer was 
opposing counsel). Official bonds were involved in three cases (Cox v. U. S. 

6 Peters 172. Bond of a Naval Agent in Louisiana. Johnston was opposing 
counsel and won. Ex parte Davenport, 6 Peters 661, Mandamus in suit on 
custom house bond. Taney defeated Hall as counsel. Duncan v. U. S., 

7 Peters 435. Ingersoll was against Taney. Bond of a paymaster). Claims 
of officers for payment for services were the subjects of three cases (U. S. v. 
McDaniel, 7 Peters 1, Department Clerk, Taney against Coxe and Jones; 
U. S. v. Ripley, 7 Peters 18, Military Officer; U. S. v. Fillebrown, 7 Peters 28, 
Secretary of a Navy Board, Taney against Coxe and Jones). There was one 
action of account (Du Bourg v. U. S., 7 Peters 625. Livingston was opposing 
counsel and won), while one case involved the priority of the United States in 



134 ROGER BROOKE TANEY 

monds had been stolen from the Princess of Orange and 
brought to this country. Taney held that, as we had 
no extradition treaty with Holland, the President would 
not be justified in surrendering the alleged criminal; 47 
that the custody of the jewels lay in the United States 
Court and not in the Collector, although the latter 
might hold them physically as the Court's servant; 48 
that these jewels, brought to the United States without 
the consent of the owner 49 stand upon the same footing 
as property cast upon our shores by violence of wind and 
waves and are entitled to the same protection. There 
was sufficient evidence that the jewels belonged to the 
Princess and they should be delivered to her, while they 
were not liable to condemnation. 50 Courts receive con- 
trol over property seized by a collector, only when a 
libel is brought against it 51 and when the prosecution is 

the payment of debts (U. S. v. State Bank of North Carolina, 6 Peters 29. 
Taney against Peters) and in 2 cases questions of procedure (U. S. v. Nourse, 

6 Peters 470. Coxe and Sergeant defeat Swann and Taney on a question of 
appeals) or of jurisdiction (Sampeyreau v. U. S., 7 Peters 222. Prentiss and 
White opposed Fulton and Taney, Powers of a court in Arkansas, U. S. v. 
McDaniel, 6 Peters 634. Coxe opposed Taney) were considered. Claims for 
land in Florida caused two cases (U. S. v. Arredondo, 6 Peters 691. Call 
Wirt and Taney against White, Berrien and Webster, U S. v. Bucheman, 

7 Peters 51, Taney opposed to White), while the forfeiture of a vessel during 
the war of 1812 (Jones and Sergeant were against Taney and won McLane 
v. U. S. 6 Peters 404), and a question of neutrality caused two more (U. S. 
v. Reyburn, 6 Peters 352. Wirt and Williams, District Attorney for Maryland, 
lost to McMahon and Gleem. Taney was not of counsel). 

47 Page 778, so in a case of a man claimed as a criminal by Portugal p. 849. 

48 Page 794. 

49 Page 798. 

50 The President should act not under the power to grant reprieves, but under 
that to see that the laws were faithfully executed. He had the right to dis- 
continue a suit, brought in the name of the United States, by giving orders to the 
District Attorney, as an attorney might discontinue a suit for a client. The 
District Attorneys were wholly different from the courts, which were independ- 
ent of the Executive. 

" Page 807. 



ROGER BROOKE TANEY 135 

discontinued, the Collector is again legally entitled to 
keep the property. 52 

Taney said that the Attorney General had no duty to 
give opinions except in cases defined by the laws 63 and 
he held that he ought not to mark out the limits of the 
legislative power, nor to express an opinion as to whether 
Congress had power to review a sentence of a Court 
Martial. On the vexed question of the power of Con- 
gress over treaties, however, he took high ground and 
held 54 that, by treaty with Spain, the Department of 
State was the depository for certain records and these 
must not be delivered to claimants, in spite of a law of 
Congress violating the treaty and authorizing such 
delivery. 

The minister to Spain was not legally allowed to 
charge for office rent though equitably entitled to it. 65 
The United States ought to make good damages and 
costs incurred, through fault of the Government, by 
the charge d'affaires to Peru from the nonacceptance of 
a bill of exchange drawn by him. 56 These two decisions 
clearly show the niggardly policy of the United States 
in foreign affairs. 

The Patent Office was then under the Department of 
State and Taney held that the office acted ministerially 
rather than judicially, since the rights secured by letters 
patent were subjects of judicial and not of executive 
decision. 57 

62 The Court might be moved to order the marshal to deliver the jewels 
to the Dutch minister. 
53 Page 830. 
M Page 819. 
66 Page 778. 

66 Page 813. 

67 Page 779. Other opinions as to Patents are found on pp. 857 and 858 and 
on p. 817, where Taney held .that an applicant for a patent must prove citi- 
zenship and residence in the United States for two years. 



136 ROGER BROOKE TANEY 

An interesting question decided by Taney 58 involved 
the right of property of a British master in slaves placed 
on board vessels trading to the United States. He 
held that the right depended upon the laws of the State, 
where the slaves were found. If they claim freedom in 
a free State, the United States were under no obligation 
to return them, especially since Great Britain does not 
recognize the possibility of slavery in her territory and, 
therefore, no question of mutuality is involved, nor does 
the treaty between the two countries speak of slavery 
expressly. He thought that, probably, the United 
States could not, in any case, by treaty, control the 
several States in the exercise of the power to free slaves. 59 

»• Page 793. 

"The Treasury Department was told that it was not the proper forum 
(p. 781) for relief to a surety on a bond (in an opinion to the Department of 
State, p. 810, Taney held that the bond of a marshal must be executed with a 
new commission) who had paid money to the United States; but that, as the 
matter was one of chancery, it belonged to the Courts. Insolvent debtors were 
the subjects of several opinions (pp. 777, 782, when a debtor was discharged, 
the Federal Government was not liable for the marshal's fees, p. 845). Other 
opinions given to the Treasury Department concerned the commutation of 
pay of Revolutionary officers of the Virginia line (p. 847) and held that the 
President had no power (p. 867) to order sale of a square in New Orleans 
(see U. S. v. Tingey, 5 Peters 127). 

Taney doubted the power of a Secretary of War to review his predecessor's 
opinion (p. 785) and held that an accounting officer may allow interest on a 
claim. Lapse of time, though strong presumptive evidence against the justice 
of a claim, is no absolute bar to its payment. Bounty land for soldiers of the 
War of 1812 (pp. 789, 810, 813, 833, 863), pensions to invalid soldiers (pension 
to indigent person to be withdrawn when he has acquired enough property to 
support him, p. 795, 811; President may exclude a civil officer from the list of 
invalid pensioners, 822; persons serving on privateers were not included in the 
pension law, vide pp. 820, 836, 855, 856), payment of the militia of Missouri, 
Illinois and Michigan when called out to serve against the Indians (pp. 834, 
841), compensation for horses lost in the service (p. 857), the pay of the Chief of 
the Engineer Corps (p. 850), a payment under the Ottawa treaty (p. 851), 
title to the Pottawatomie Reservation (p. 868, his last opinion) were among the 
subjects on which Taney gave opinions to the Secretary of War (Taney held 
that a law, directing an account to be reopened for a specific purpose should be 



ROGER BROOKE TANEY 137 

The Norfolk Drawbridge Company, without the con- 
sent of the legislature of Virginia, had no power to execute 
a contract to the United States so as to surrender its 
rights to the bridge and the road leading thereto, 60 nor 
could it otherwise extinguish the rights of the public 
therein. "An act of incorporation of this description 
can never be considered as having been granted for the 
exclusive benefit of the corporators. Certain privileges 
are given to them, in order to obtain a public con- 
venience, and the interest of the public must, I presume, 
always be regarded as the main object of every charter 
for a toll bridge, or a turnpike road. The exclusive 
privileges are not given to the corporators, merely for 
individual emolument, or from favoritism, but are 
granted as a compensation for the public convenience, 
derived or expected to be derived, from the work done 
by them and are offered in the charter as inducements to 
individuals to undertake it. And this must especially 

strictly construed, p. 820, and that payment for building material at Fort 
Monroe could not be made, until the contracts had been deposited with the 
Comptroller and the accounts adjusted in the Treasury). The Army might 
remove by force, on direction of the President, intruders from the Creek reserva- 
tion, whether or not it lie within a State (p. 860. An opinion given the Com- 
missioners of the Land Office determined questions concerning land claimed by 
the Miamies and concerning the treaty with that tribe of Indians). 

Though the sum involved were small, Taney gave the subject attention, 
if the principle were important, and held that, when a contract had been 
made for the return of a discharged seaman who only came part way back; the 
Captain could only recover for the distance the seaman returned (p. 788). 
Among minor opinions given the Navy Department are these: holding that 
the oaths (p. 783) of members of Courts Martial need to be taken only once (on 
the number composing Courts Martial, p. 832), concerning proceedings to 
punish the cutting of live oak (p. 805), treating of the duties and positions of the 
Board of Navy Commissioners (p. 811), and deciding that a widow can not be 
compelled to refund moneys erroneously paid her, since she is not a debtor to 
the public, for what she may have erroneously received under decisions of the 
tribunals established to decide on her rights (pp. 831, 838, 840, on a disabled 
officer's pensions, p. 842 . Widows' pensions are not to be paid after remarriage) . 

60 Page 818. 



138 ROGER BROOKE TANEY 

be the case in a charter like this, where the power of the 
eminent domain is exercised in taking the property of 
individuals, without their consent, in order to make 
the contemplated work." This is sound doctrine and 
foreshadows Taney's decision in the Charles River 
Bridge Case. 61 

To the District Attorneys, Taney gave several 
opinions. If a man took slaves in 1831 to Texas, out- 
side of the limits of the United States, expecting to 
establish a domicile there and not as a sojourner, he may 
not bring these slaves back, although he may have 
changed his mind within a few weeks. 62 A United 
States Judge in Virginia 63 may issue a warrant to arrest 
a man 64 for an assault committed upon the President 
of the United States within the District of Columbia 
and the warrant will run throughout the United States. 

The opinions given to the President were quite 
numerous. 65 During the recess of the Senate, the 

61 Vide p. 842. 

62 Page 796. An opinion on p. 826 deals with prosecution of persons taking 
live oak ship timber from the public lands. 

63 Page 853. Opinion to F. S. Key, District Attorney for District of Columbia. 

64 R. B. Randolph. 

65 Two of these opinions dealt with Indian questions: the right of Choctaws 
who prefer to remain in the East to become citizens of the United States 
(p. 784) and the power of the President to sell the Choctaw lands (p. 786). 
The salary of the Surveyor for the City of Washington (p. 791), counsel fees 
in a case in the District of Columbia (p. 806), the grading of streets in Washing- 
ton (p. 837), the pay of clerks of the Board of Navy Commissioners (p. 865) 
received Taney's attention. He held that there was no warrant in law to pay 
a Foreign Minister, or a Consul, his salary for a quarter of a year after his 
recall, and that this salary should be paid him, only when he is abroad, so 
as to allow him to return home (p. 790); that a widow of a consul who died 
in office might receive a quarter's salary; that if the consul's son remained at 
the port and discharged the duties of the office, he may receive the compensa- 
tion and that the funeral expenses of a consul were a fair charge on the con- 
tingent fund (p. 824); that the duties of accounting officers were not judicial 
(p. 792, vide p. 797); and that a decision of the Comptroller concerning an 



ROGER BROOKE TANEY 139 

President had power to fill vacancies 66 which exist in 
subordinate offices and was not limited to those vacan- 
cies which occur in the recess. It was the intention of 
the Constitution that the offices created by law and 
which are necessary to the current operations of the 
Government should always be full and, when vacancies 
occur, they shall not be protracted beyond the time 
necessary for the President to fill them. "The Con- 
stitution was framed for practical purposes and a con- 
struction that defeats the very object of the grant of 
power cannot be the true one." If a nomination is not 
confirmed by the Senate, the commission expired at the 
end of the Session and, therefore, a vacancy was anew 
created. "Vacancies are not designedly to be kept open 
by the President until the recess, for the purpose of 
avoiding the control of the Senate." The Constitution 
uses the word "happen" of vacancies, and that shows 
that accidental ones were contemplated. 

Taney's last opinion given to the President was dated 
on September 21, 1833, and was to the effect that the 
Secretary of the Treasury might take security from 
State Banks for the deposit of National funds. 

In addition to his political and official activity, 
Taney found time, as we have already seen, to carry on 
his practice before the Court of Appeals at Annapolis. 

account is conclusive on the Executive Branch (p. 815) of the Government, 
the President having no power to enter into the correctness of the account. 
General Zachary Taylor had been sued as a result of an accounting. The 
President might direct the District Attorney to expedite the suit, but Taylor 
must seek relief from the judgment of the Court in an act of Congress (vide also 
p. 839). 

Taney also considered a grant of lands to Ohio for the Miami Canal (p. 843) 
and of public lands to Arkansas (p. 862). 

66 Page 826. 



140 ROGER BROOKE TANEY 

In 1832, he won a case involving a guardianship 67 and 
lost a chancery case. 68 He was one of the Railroad 
counsel, although not one of those who argued, in that 
year, the great case of the Chesapeake and Ohio Canal 
Company versus the Baltimore and Ohio Railroad 
Company. He took a keen interest in the case. 69 
Walter Jones and A. C. Magruder appeared, in the 
Court of Appeals, for the Canal Company, Daniel 
Webster and Reverdy Johnson were counsel for the 
Railroad Company, which won the case in the Chancery 
Court below. The question involved the priority of a 
right of way along the Potomac River upon the north 
bank, west of Harper's Ferry. Taney had been inter- 
ested in the Railroad for some time and had gone in a 
party, with J. H. B. Latrobe and others, in 1830 to 
inspect the track through the gorge of the Patapsco 
River. 70 When the decision was rendered in the Court 
of Appeals in favor of the Canal Company by three 
judges out of five present, the sixth judge being absent, 
Taney felt so strongly in the matter that he wrote 
Latrobe, on January 6, 1832: "It is difficult to write to 
you on the subject, without saying what I think about 
the conduct of the three judges who were determined to 
decide the case against us, while one was absent." It 
will be remembered that the decision below was for the 
Railroad and that, if the Court of Appeals had been 
evenly divided, that decision would have been confirmed. 

67 Jarrett v. Stump, appeal from Harford County, 5 Gill and Johnson 27. 
Case instituted 1827 — C. W. S. Dorsey and Reverdy Johnson opposed Gill 
and Taney as counsel. 

68 Chambers v. Chalmers, 4 Gill and Johnson 420. Dulany and Reverdy 
Johnson opposed Taney and Mayer. 

69 4 Gill and Johnson 1. 

70 Semmes's Latrobe, pp. 332, 343, 344. 






ROGER BROOKE TANEY 141 

A month later, Taney's resentment had not softened 
and, on February 7, he wrote Latrobe again that the 
judges; "by an act of mere despotic power," have de- 
cided, "without taking time to think of it and without 
having made up their minds what reasons are to be 
given for it." 

In 1833, Taney argued four cases before the Court of 
Appeals, three of which he won. The one lost concerned 
a covenant to put up a steam engine 71 while those he 
won concerned a chattel mortgage, 72 an alleged fraudulent 
conveyance 73 in Frederick County, and a condemnation 
by a foreign prize court of a vessel on a voyage to 
Colombia in 1822, which vessel thereby became a total 
loss to its owners. 74 In this last case, an imposing array 
of counsel were engaged, viz., R. B. Magruder, Purviance 
Meredith, Martin, and Wirt against Taney, Reverdy 
Johnson, and Glenn. 

Taney also had some office practice, in the course of 
which he wrote an opinion, on September 5, 1833, on 
the validity of the law of New Jersey under which the 
Camden and Amboy Railroad and the Delaware and 
Raritan Canal Company obtained a monopoly of a 
transportation route. This opinion, which was printed 
in Niles 1 Register on the subsequent second of Novem- 
ber 75 is especially important, in view of Taney's later 
opinion in the Charles River Case and it is interest- 
ing to learn 76 that the attorneys for the old bridge, 

71 Watchman v. Crook, 5 Gill and Johnson 239. Gill and Taney against 
Reverdy Johnson and Evans. 

72 Clagett v. Sulman, 5 Gill and Johnson 314. Alexander and Taney 
opposed Reverdy Johnson and Mayer. 

73 Birely v. Staley, 5 Gill and Johnson 433. Taney, Palmer and Duckett 
opposed William Schley and F. A. Schley. 

74 Maryland Insurance Company v. Bathurst, 5 Gill and Johnson 159. 

75 45 Niles Reg. 150. 

78 Thayer's Select Cases in Constitutional Law, note on that case. 



142 ROGER BROOKE TANEY 

against which the decision of the Court was made and 
Taney's opinion was written, were in possession of this 
opinion and knew that they had to combat it. 

Taney began, by admitting that it was too well 
settled to be disputed that a charter can not be altered 
by a State Legislature. Had the Legislature, however, 
the power, in this case, to make the contract, or is it 
an ultra vires one? There was no clause in the New 
Jersey Constitution, which gave the power specifically, 
and, if it existed, it must be regarded as inherent in the 
legislative power, unless prohibited to the Legislature. 
The Charter of the Bank of the United States endeavored 
to establish such a monopoly; but, Taney wrote, 

I cannot think that a legislative body, holding a limited author- 
ity under a written constitution can, by contract or otherwise, 

limit the legislative power of their successors If 

they can deprive the successors of the power of chartering com- 
panies of a particular description, or in particular places, it is 
obvious that, upon the same principle, they might deprive them of 
the power of chartering any corporations, for any purpose what- 
ever, and, if they might, by contract or otherwise, deprive their 
successors of this legislative power, they could surrender any 
other legislative power whatever, in the same manner, and bind 
the State forever to submit to it. The existence of such a power 
in a representative body has no foundation in reason, or in public 
convenience, and is inconsistent with the principles upon which 
all our political institutions are founded. For, if a legislative 
body may thus restrict the powers of its successors, a single 
improvident act of legislature may entail lasting and incalculable 
evils on the people of a State. 

Where power has been expressly delegated to the legis- 
lature, of course, it binds the State in the exercise of 
that power; but "it is not at all essential to the exercise 
of the power to create corporations that an agreement 



ROGER BROOKE TANEY 143 

should be made not to charter other corporations which 
may rival it in trade." 

"The charter for a railroad from Trenton to New 
Brunswick," Taney concluded, "would not be inconsis- 
tent with the capacities and franchises granted to the 
present united canal and railroad companies. They 
would still exercise and enjoy them, though they would 
prove less profitable." 

Finally, he said that the "principles of moral justice 
would, undoubtedly, in many cases, require that the 
State should indemnify a party who had confided in the 
public agents and had mistaken their power," but 
further than this, even "moral justice" would not go. 



CHAPTER VII 

Secretary of the United States Treasury 

(1833-1834) 

On September 23, 1833, Taney became Secretary of 
the Treasury, and continued to hold that portfolio, until 
his nomination thereto was rejected by the United 
States Senate, on June 24, 1834, by a vote of 28 to 18. 
He resigned on the following day, choosing not to await 
the end of the Session, as he might have done under the 
provisions of the United States Constitution. 1 He was 
the first Cabinet officer whose nomination had been re- 
jected by the Senate, 2 and the rejection shows how 
bitter had become the fight into which he had plunged. 

When Taney was appointed, John Quincy Adams 
wrote in his diary 3 "Upon all which I take time 
for reflection," but very few others did so. Taney 
appreciated fully the gravity of the situation. Amos 
Kendall's memory doubtless heightened the color of 
Taney's words, 4 but there must have been some 
measure of truth in his report of what Taney said to 
him on being urged to accept the succession to Duane: 

I have, as one of the President's constitutional counsellors, 
advised him to cause the public deposits to be removed from the 
Bank of the United States, and he proposes to act in accordance 
with my advice. I, therefore, feel bound in honor to aid and sus- 
tain him in any position which he may think proper to assign to 

1 Hinsdale, "President's Cabinet". 

* J. F. Essary "Maryland in National Politics," p. 168. 

3 Vol. 10, p. 17, p. 48, December 8. He read the papers concerning the 
removal of Deposits, but made no comment. 

4 Kendall's Autobiography, p. 386. 

144 



ROGER BROOKE TANEY 145 

me. But [raising his hands to heaven] in doing so, I give up the 
most cherished object of my life. I am not a politician and have 
never sought political office. The summit of my ambition has 
been a seat on the Bench of the United States Supreme Court, 
and that desire I surrender — accepting the Treasury Department 
now. 5 

Not only had he excited the hatred of the Bank's 
friends; but, what must have been far more galling to 
him, then, and for long years afterwards, he was regarded 
by many as Jackson's tool and instrument, instead of 
being, as was really the case, a most active instigator, 
suggestor, and initiatorof Jackson's acts. As late as April 
IS, 1839, John Quincy Adams, who had been in Washington 
throughout the fight about the Bank, wrote in his diary, 6 
after reading Duane's book, that Taney was a "supple 
and submissive assentator" to Jackson. Of later years, 
a more accurate view has prevailed, and von Hoist 7 
wrote that Taney was "not a pliant tool, nor one that 
acted through selfish motives." .... He fully 
shared Jackson's opinion concerning the Bank, and even 
seems to have urged the removal before Jackson decided 
it." 8 In the remarks which Reverdy Johnson made 
after Taney's death, 9 he stated that, for some years 
before Taney's appointment to the Bench, the two men 
were "on the most intimate terms," and Johnson 
"possessed Taney's confidence." Taney often con- 
versed with Johnson "on all the political topics of the 

5 Kendall said (p. 388), that Taney asked him to become President of the 
Bank of the Metropolis — the deposit bank in Washington — and act as super- 
intendent of the new system through that bank. 

8 Vol. 10, 115. 

7 Constitutional History of the United States, II 65. 

8 Taney wrote Van Buren on June 30, 1860, an interesting letter upon the 
misconduct of Biddle and the Bank, 10 Md. Hist. Mag. 22. 

9 Tyler p. 496. 



146 ROGER BROOKE TANEY 

day, and, amongst others frequently, of the charac- 
ter, tendency, and actual condition of the Bank." At 
that time, he did not anticipate being called into 
Jackson's cabinet, and, to use Johnson's words, "he 
over and over expressed to me his convictions that the 
Bank, as he thought it was administered, was dangerous 
to the true interests of the country, because, he said, it 

was being used for party political purposes 

He, therefore, considered it to be the duty and the 
interest of the government (the charter clearly giving 
the power), to remove the public money from its custody, 
and said, that if the authority was with him, he would 
lose no time in exercising it." When, therefore, he was 
appointed Secretary of the Treasury, the order which he 
gave "was but the carrying out of a measure which he 
had long deemed — whether correctly or not is immate- 
rial — to be important to the public good If 

influence, therefore, was exerted at all in relation to the 
measure, it was the influence of Taney on Jackson, and 

not of Jackson on Taney He was said to 

have been an instrument; when, on the contrary, his was 
the mind that determined upon and adopted the measure." 
Taney had taken office, so as to carry out the policy 
of ceasing to place the deposit of public moneys in the 
United States Bank, drawing out what had already 
been placed there, according to the needs of the Govern- 
ment, and depositing these funds, in the future, in 
selected State banks — the so called "pet banks." Only 
men blinded with prejudice, or self-interest, could have 
supported the plan. Parton, an ardent admirer of 
Jackson, is forced to condemn the project 10 exclaiming: 
"What a simple, what a harmless measure this appears! 

10 Life of Jackson III, p. 499. 



ROGER BROOKE TANEY 147 

And harmless it would have been : but for one lamentable 
circumstance. The government had not devised a proper 
place to which to transfer the public money." 11 

There was another difficulty in Taney's case. Though 
the standard of public honor had not then been made 
that which Caesar proclaimed concerning his wife to be 
above suspicion, yet even then there was some feeling 
concerning the impropriety of Taney's selection of the 
Union Bank of Maryland as one of the banks to receive 
the public deposits. Taney had been counsel for, and 
director of this bank, and was a stockholder in it, at the 
time he selected it as a government depository. 12 

Before long, Taney's faith in his friend, Thomas 
Ellicott, the President of that Bank, was rudely shat- 
tered. 13 Taney feared that the United States Bank 
would attempt to injure the deposit banks, by calling 
them to pay balances due, and, to offset this demand, 
he placed large drafts on the Bank of the United States in 
the deposit banks at New York, Philadelphia, and 
Baltimore, with the understanding that these drafts 
should not be used otherwise. The Bank of the United 
States took no steps to hurt the deposit banks; but, 
contrary to Taney's instructions, a few days after the 
new system had gone into operation, the Union Bank 
cashed a draft on the United States Bank for $100,000. 
Before there was time for any explanation, the other 
one given the Union Bank for the same amount, was 
cashed likewise. 14 The money was used in stock specu- 

11 Partem believed the measure first occurred to Jackson early in 1833, 
while engaged in conversation with Frank P. Blair. 

12 Sumner's Jackson p. 307 states that he sold his stock on February 18, 
1834. When Niles's Register for September 28, vol. 45, p. 65, announced 
Taney's appointment, it added that it was understood that the Union Bank of 
Maryland would obtain the deposits in Baltimore. 

13 Sumner's Jackson, 307, Kendall's Autobiography, 392. 

14 Kendall p. 392 states that Taney privately told the deposit banks not to 
lend money to the Post Office Department. 



148 ROGER BROOKE TANEY 

lation, and no satisfactory response was made to Taney's 
inquiry as to the matter. Then he asked Ellicott to 
come to Washington and explain his conduct. Ken- 
dall was with Taney, when Ellicott arrived, and lis- 
tened to his "stammering explanation." He virtually 
admitted the use of the money for stock speculations, 
when taxed with this by Kendall. Taney "was an- 
noyed the more," because Ellicott was "his friend and 
special adviser in financial matters," and because an 
exposure of him would "put a powerful weapon into the 
hands of the enemy." Consequently, he dismissed 
him, with a reprimand, and merely refused him more 
money in the future, but Congress found out the trans- 
action after all, and investigated it. 

As late as May 23, 1834, however, we find a copy of a 
letter from Taney to Ellicott. 15 It seems that Taney 
had a conversation with Ellicott, on the previous 
Sunday, and had since received two letters from him. 
For unnamed reasons, Ellicott, of whom Taney speaks 
as "among my oldest and most confidential friends," 
and as "one of my oldest and most trusted friends," 
had become so alarmed at the "power of the Bank of 
the United States to do mischief," that, by an aston- 
ishing right about face, he actually recommended a 
recharter of the Bank. Taney, as ever, believed that 
this was a "struggle for the liberties of the country, and 
that, if the Bank triumphs, the Government passes into 
the hands of a great monied corporation." To advocate 
the renewal of the charter, would be "the betrayal of the 
best and dearest interests of the country and would 
justly cover" Taney's "name with dishonor." Ellicott 

18 5 Md. Hist. Mag. 35, prints this letter, the manuscript of which is dis- 
tinctly marked by Taney as a copy of one sent to Ellicott, but the editor con- 
jectures that it was written to Biddle, which the contents show to be impossible.. 



ROGER BROOKE TANEY 149 

had said that there was a desire in Washington to with- 
draw the deposits from the Union Bank, on account of 
loss of confidence in him. Taney denied this, and said 
that "they will be cheerfully continued there, as long 
as it is believed to be a safe depositary." Taney was 
serenely sure that, in the long run, "the efforts of 
the Bank to ruin the country will be comparatively 
harmless." 

The administration's unsound financial policy caused 
great distress throughout the country, and a terrible panic 
ensued, accompanied with widespread financial ruin. 16 
These things did not shake Jackson's, nor Taney's, 
determination; but they brought to Washington, in 
December, a Congress in which the Whig majority of 
the Senate was almost foaming with rage. Jackson's 
message 17 told Congress that "the Secretary of the 
Treasury has directed the money of the United States 
to be deposited in certain State Banks, designated by 
him, and he will, immediately, lay before you his reasons 
for this direction. I concur with him, entirely, in the 

16 Among Taney's correspondence of the period, are found two letters of 
some interest, printed in 13 Md. Hist. Mag. 161 and 164, written to Taney 
by Jackson and Andrew Stevenson. Jackson enclosed a note from Moses 
Dawson of Cincinnati, asking for the names of holders of government "stock,"' 
that he might endeavor to induce them to sell it and lend him the money 
"at a more advantageous rate of interest!" while Stevenson told of Mr. Daniel's 
refusal of office, and requested that Mr. Price, whom Duane had forced to 
resign from a position in the Treasury Department, might be reinstated. The 
Jackson papers contain two letters dated December 20: one from Jackson to 
Taney about the Potomac Bridge, and one from Taney to Loammi Baldwin,. 
Superintendent of the Dry Dock at Norfolk, requesting him to come to Wash- 
ington for a conference over the bridge. Two long and interesting letters 
from Key, written from Alabama, in November, 1833, and treating of the 
strength of the Nullifiers there and of Indian affairs are printed in 5 Md. Hist. 
Mag. at pp. 27 & ff. 

17 In 5 Md. Hist. Mag. 32 is printed a letter from Van Buren to Taney dis- 
cussing this message. 



150 ROGER BROOKE TANEY 

view he has taken of the subject, and, some months 
before the removal, I urged upon the department the 
propriety of taking that step." When Jackson sug- 
gested this step to Duane, upon June 1, he was actuated 
by the "near approach of the day on which the charter 
will expire, as well as the conduct of the Bank;" but, 
late in August, he received from the Government Direc- 
tors, a report, "establishing beyond question," that the 
Bank had been active in politics and had "placed its 
funds at the disposal of its president, to be employed in 
sustaining the political power of the Bank." Jackson 
then felt, as he told Congress, that the Secretary of the 
Treasury, the only officer who could remove the deposits 
in accordance with the terms of the charter, ought 
at once to exert his power, "to deprive that great cor- 
poration of the support and countenance of the Gov- 
ernment, in such a use of the funds and such an exertion 
of its power." 

On the next day, Taney's report was in the hands of 
Congress. 18 He began, by stating that, in pursuance of 
the power given him by the Charter of the Bank, he had 
"directed that the deposits of the money of the United 
States shall not be made" in the Bank. The Charter 
was a contract, and vested power to withdraw the 
deposits in the Secretary of the Treasury, "whenever the 
change would, in any degree, promote the public interest. 
It was not necessary that the deposits should be unsafe 

18 Senate Docs. 23rd Cong. 1st Session pp. 1-41. Van Buren in his Auto- 
biography (Am. Hist. Ass. Rep. 1918 vol. II, p. 654) wrote, praising the report 
for "the clearness, the distinctness, and the obvious freedom from either 
reserve or passion which characterize its statement of the facts that belong to 
the case and the irrefragible proofs it deduces from them that the acts im- 
puted to the bank were voluntary" and intended. He refers to Taney (p. 364) 
as "accomplished and upright." The relations between the two men were 
close (p. 511) 



ROGER BROOKE TANEY 151 

in order to justify their removal." Taney considered 
that the "general interest and convenience of the people 
must regulate his conduct." The reasons he assigned 
for his action were these: 1. The Bank's charter will 
not be renewed, and, consequently, Taney must make 
arrangements, before March 1836, for the deposits — a 
date nearly two and one-half years away. A "serious 
inconvenience" would result, if a large sum were left 
in the Bank until the last day. The Bank should be 
forced to call in its notes, and suffer those of the State 
Banks to take their place. The time "which remained 
for the charter to run" was "not more than was proper 
to accomplish the object" of withdrawing these notes 
with safety to the community. "If it had depended" 
upon Taney's "judgment," the deposits would have been 
withdrawn "at an earlier period." "I should have pre- 
ferred," he wrote, "and should have taken a longer 
time." After the last Presidential election, the Bank 
diminished its discounts, thus injuring the people. The 
conduct of the Bank left Taney no choice as to delay 
action, until Congress met (as he stated he would have 
preferred). 19 " If the measure had been then suspended, 
to be resumed at a future time, it was within the power 
of the Bank to produce the same evil, whenever it was 
attempted." The conduct of the Bank had made it 
Taney's duty to withdraw the deposits, since its 
Exchange Committee, of which not one public director 
was a member, controlled many of the Bank's affairs. 

2. The Bank wanted damages on a protested note 
under the French treaty. An award to the United 
States of certain claims against France had been made 
by Commissioners under a treaty. The United States 
had drawn a bill of Exchange against France for the 

19 This seems disingenuous. 



152 ROGER BROOKE TANEY 

amount. The French Chamber of Deputies refused to 
appropriate money to pay the award and the bill, which 
had been sent through the United States Bank, was 
returned protested. The Bank properly asked damages 
for its charges. Catterall 20 speaks of Taney's refusal to 
pay the Bank this claim for damages, as "forfeiting the 
national honor," showing how different is modern 
opinion from that of the Jacksonians. 

3. The Bank used its money with a view to secure 
political power, and thus secure the renewal of its 
charter. Taney maintained that the conduct of the 
Bank had "been such as would induce a prudent man, in 
private life, to dismiss his agent from his employment." 

4. "In the selection of the State Banks as the fiscal 
agents of the Government," Taney reported, "no dis- 
advantages seem to have been incurred, on the score 
of safety or convenience, or the general interests of the 
country, while much that is valuable will be gained by 
the change." These Banks will appreciate the interests 
of the people and will not seek political power. 

When one reads Taney's report, one thinks of the 
Motto: "ne sutor ultra crepidam." He was a shrewd 
politician, and an able lawyer; but, assuredly, he was no 
financier. Dewey states the fundamental criticism to 
be made on the Report is that it was "political, rather 
than fiscal. 21 Bolles 22 shows the weakness of Taney's 
position, in that he alleged the curtailment of discounts 
as a cause for removing the deposits, while, by removing 
them to cause the retiring of the Bank's notes, his act 
had, as its "inevitable effect," the still further contrac- 
tion of discounts. "He compelled the institution to 

20 Second Bank of the United States, p. 302. 
« Financial History of U. S., p. 207. 
22 Financial History of U. S., II, p. 342. 



ROGER BROOKE TANEY 153 

curtail deposits and then most unjustly blamed it for so 
doing. The fairest construction, perhaps, to put on 
Taney's conduct, is that he did not comprehend what he 
was about, nor the consequences of his own acts. Others 
comprehended them clearly enough; but he was finan- 
cially blind." 

Bassett 23 is more favorable in his judgment, writing 
that Taney "was the ablest man in the anti-bank faction, 
and his report is in pleasing contrast with the loose 
reiterations of suspicion and assumption, which came 
so plentifully from his colleagues." 

Justice Story wrote soon after he read this report, 24 
that he thought that the Secretary of the Treasury had 
discretion to remove the deposits, provided he acted 
bona fide. Differing from Taney, he considered this 
power "a personal trust" with Taney, and one which 
had "nothing to do with the ordinary duties of his 
department." The "President had no right to inter- 
vene" in the matter, and Congress might require the 
deposits to be restored, even without Taney's consent. 
"The Secretary's discretion was not limited to cases 
of danger; but, if he acts in personam, in pursuance of 
the President's orders, without the independent exercise 
of his judgment, he violates his trust." Neither the 
State Banks, nor the Secretary were regarded by Story 
as having the right to make contracts for deposits. 

On December 26 and 29, Henry Clay delivered a great 
speech in the Senate, attacking Taney, and so much 
applause followed the end of the speech, that the gal- 
leries were cleared. 26 The speech was made in support 

23 "Life of Jackson," p. 646. 

24 Story's Story II, 122, February 11, 1833. 

25 Cong. Debates, vol. 10, pt. 1, pp. 58 to 94. Van Buren in his Auto- 
biography p. 644 (Am. Hist. Ass. Rep. 1918, vol. II) speaks of Clay's "unfair 
attack upon Taney, on the ground of his interest in the Union Bank of Mary- 



154 ROGER BROOKE TANEY 

of a resolution which stated that the reasons brought 
forward by Taney for the removal of the deposits were 
"unsatisfactory and insufficient." Clay asserted that 
Taney "throughout his whole career, has been uniformly 
opposed to democracy," and referred to the fact that, 
in 1820, when the country was "threatened with civil 
war and a dissolution of the union, voted (though the 
resident of a Slave State), in the Legislature of Maryland 
against the admission of Missouri into the Union with- 
out a restriction incompatible with her rights as a mem- 
ber of the Confederacy." 26 He maintained that the 
Secretary of the Treasury was a "mere representative 
and agent of Congress, acting in subordination to it, 
and bound, whenever he did act, to report to his principal 
his reasons, that they might be judged of, and sanc- 
tioned, or overruled." 27 This view has now been given 
up; but, with more reason, Clay complained that the 
public money had not been left in the Bank until 
December, when Congress met, and he sneered at the 
"reckless" and "confident assertions" of this "wonder- 
ful financier," this "modern Turgot." 

Taney had his supporters, both in and out of Congress, 
and the New Jersey legislature, on January 11, 1834, 
instructed the Senators and Congressmen from the 
State to sustain Taney's course. 28 In the Senate, how- 
ever, there was a Whig majority, and the Committee of 
Finance, through Daniel Webster, made a report 29 con- 
demning the removal of the deposits. 

land, which the latter turned with so much power upon his assailant." In 
another place Van Buren asserted "nor was there a single man, however 
steeped in party politics, not excepting Mr. Clay himself, who harbored a doubt 
of the entire purity of Taney's motives and acts." (p. 737). 

26 Op. cit., p. 76. 

27 Op. cit., p. 79. 

28 Thorpe, " Statesmanship of Andrew Jackson," p. 353. 

29 Cong. Debates, 23rd Congress, 1st Session, vol. 10, pt. 4, App. p. 146. 



ROGER BROOKE TANEY 155 

The Secretary's construction of the law, according to this 
report, was that he has power to remove the deposits, whenever, 

for any reason, he thinks the public good requires 

The keeping of the public money is not a matter which is left, 
at the will of the Secretary, or any other officer of the government. 
This public money has a place fixed by law and settled by contract, 
and this place is the Bank of the United States. In this place, 
it is to remain, until some event occur, requiring its removal. To 
remove it, therefore, from this place, without the concurrence of 
just cause, is to thwart the end and design of the law, defeat the 
will of Congress, and violate the contract into which the Govern- 
ment has solemnly entered. 

Further on, the report maintained that the Secretary's 
power was provisional, that the propriety of its exercise 
" is ultimately referred to the wisdom of Congress," and 
that his "contingent power was for sudden emergency 
to secure safekeeping." Surely, the safety of the 
deposits was not impaired by the approaching end of the 
Charter. 

Calhoun took a rather different view, and, though he 
denounced Jackson and Taney, in a speech before the 
Senate, said that, 

While I thus severely condemn the conduct of the President in 
removing the former Secretary, and appointing the present, I 
must say that, in my opinion, it is a case of the abuse, and not of 
the usurpation, of power. I cannot doubt that the President has, 
under the Constitution, the right of removal from office, nor can I 
doubt that the power of removal, wherever it exists, does, from 
necessity, involve the power of general supervision; nor can I 
doubt that it might be constitutionally exercised in reference to the 
deposits. 

In the House of Representatives, there was a Demo- 
cratic majority, and James K. Polk, the Chairman of the 
Committee of Ways and Means, made a report for that 



156 ROGER BROOKE TANEY 

Committee on March 4, approving Taney's December 
report 30 and stated that "the hope of obviating all the 
difficulties of the final substitution of a metallic cur- 
rency, in exclusion of bank paper of every kind, is a 
mere delusion." 

John Quincy Adams endeavored to give "utterance 
to his indignation" at Taney's conduct by a speech 
upon the floor of the House of Representatives, but the 
"address of the Speaker" and the use of the previous 
question prevented him from doing so. 31 He immedi- 
ately published the speech he had prepared himself to 
deliver, in which he asserted that "the removal of the 
deposits, and the contract with the State Banks to 
receive those deposits," were both unlawful. He ana- 
lyzed the Committee's report with minuteness, and 
concluded that their effort had been vain "to bolster up 
the lawless act of the Secretary of the Treasury in trans- 
ferring public moneys from the lawful place of deposit 
to others, in one of which, at least, the Secretary had an 
interest of private profit to himself." This innuendo 
was made perfectly clear, when Adams stated further on 
in the speech, 

I believe both the spirit and the letter of the law to have been 
violated by the present Secretary of the Treasury, when he trans- 
ferred the public funds from the Bank of the United States to the 
Union Bank of Baltimore, himself being a stockholder therein. 
And so thorough is my conviction of this principle, and so 
corrupting and pernicious do I deem the example he has thereby 
set ... . that, if there were a prospect of his remaining 
in office longer than till the close of the present session of the 
Senate, I should deem it an indispensable, albeit a painful, duty 
of my station, to take the sense of this House on the question. 

30 Cong. Debates. 23rd Congress, 1st Sess., Vol. 10, pt. 4, App. 161. A 
minority report was signed by three Whig members, R. H. Wilde, B. Cochran, 
and Horace Binney. Op. cit., p. 177. 

31 Quincy's "Life of J. Q. Adams," p. 226. 



ROGER BROOKE TANEY 157 

Adams then charged that Taney "tampered with the 
public moneys, to sustain the staggering credit of 
selected depositaries," and scattered the funds "abroad 
among swarms of rapacious political partisans." The 
remainder of the speech consisted mainly of an attack 
upon Jackson and the policy of the financial adminis- 
tration and of the mistaken characterization of Taney as 
a "supple and permissive" tool of the President. 

On February 5, 1834, the Senate passed the resolu- 
tions before it, by a vote of 28 to 18, for the first one, and 
26 to 20, for the second. These resolutions asserted 
"that the reasons assigned by the Secretary of the 
Treasury for the removal of the money of the United 
States, deposited in the Bank of the United States and 
its Branches, communicated to the Congress on the 
fourth day of December, 1833, are unsatisfactory and 
insufficient;" and "that the President, in the late 
Executive proceedings in relation to the public revenue, 
has assumed to himself authority and power not con- 
ferred by the Constitution and laws of the United States, 
but in derogation of both." Jackson protested, on 
April 15, against these resolutions, and, on May 7, the 
Senate replied with a refusal to spread the protest on 
the journal. Jackson's friends, headed by Benton, 
labored incessantly to have this action reversed, and, on 
January 16, 1837, the majority of the Senate having 
changed from the Whigs to the Democrats, a resolution 
passed that body, expunging the former resolutions. 

Macdonald said 32 that the "right of either House of 
Congress to express, by formal resolutions, its opinion 
of an executive act, is neither granted nor withheld by 
the Constitution, but the right to censure would seem 
to be precluded by the grant to Congress of the power of 

32 "jacksonian Democracy," p. 227. 



158 ROGER BROOKE TANEY 

impeachment." Surely, this view is too extreme. The 
Executive act may be censurable, yet not so seriously 
wrong as to justify the removal from office by impeach- 
ment. 

In Baltimore, also, Taney met opposition. On March 
5, a public meeting was held to urge the restoration of 
the deposits and to receive a report of a deputation which 
visited Washington to see Taney. 33 The deputation was 
composed of William Crawford, Jr., George Brown, 
James W. Patterson, and George R. Gaither. Taney 
received them with his usual courtesy, in the presence of 
Isaac McKim, one of Baltimore's Congressmen, and the 
interview lasted for half an hour. Brown, with whom 
Taney had a "familiar and friendly acquaintance," told 
Taney that he wished to speak with him, "officially, and 
as a citizen of Baltimore, who could not be indifferent 
to its welfare." The deputation came with no un- 
friendly purpose, but to communicate to Taney the 
public distress and to ask, whether, in view of this, he 
could not change his position in reference to the Bank, — 
a position which appeared to the deputation so unfortu- 
nate. They reported that Taney told them that the 
"Bank had arrayed itself against the Government, and 
that the Government would not yield, and that the 
impression of the Government was that the evil the 
people complained of grew out of the great power of the 
Bank, that the Government was making an experiment 
and, however bold, he would not undertake to advise 
any change from the position it had assumed against 
the Bank, that he found no difficulty in transferring 
funds from one part of this extensive country to the 
other." Patterson, who had come in late, then said: 
"Sir, if this experiment should be persisted in, and some 

33 46 Niles Register 30, 31. 



ROGER BROOKE TANEY 159 

relief, such as we do not now anticipate, should not be 
given — a large proportion of the trading community 
must fail." Taney replied, relentlessly: "If all did 
fail, the policy of the Government would not be changed. 
If the commercial classes had properly sustained their 
State Institutions, the present state of things would not 
have existed. The Government would make no change, 
until the present Bank charter expired. I am surprised, 
that, after all that had appeared in the newspapers and 
the long speeches made in Congress, more failures had 
not taken place." With this unsatisfactory report, the 
deputation was compelled to return home. Taney 
publicly denied the accuracy of the report of the con- 
versation, and McKim lamely supported him, 34 but the 
deputation stood their ground, and their statements 
leave the impression that their memories of the meeting 
were the more accurate. 35 

Taney's holdings of stock in the Union Bank, amount- 
ing, it was said, to $6000 or $7000, now became a scandal 
and Clay, on March 25, in the Senate, referred to these 
holdings and to Taney's former directorship in the 
Bank. 36 The Bank question was intimately connected 
with that of the currency. Benton and Taney were 
hard money men, and Benton introduced into the 
Senate, a bill for equalizing the value of gold and silver 

34 46 Niles Register p. 34, March 15, 1834, and p. 49, March 22, 1834, 
pp. 55, 71. 

36 Taney said that he knew Crawford and Gaither slightly, that he did not 
speak for publication, that he had not meant to speak slightingly of the "mer- 
cantile community," but had said that it might "bring a panic on the com- 
munity for party purposes," and so bring on "general ruin." He was willing to 
leave it to the "public as to whether he, or the committeemen, would be likely 
to feel more sympathy for the sufferings of our citizens, and which would 
make greater sacrifices to alleviate and relieve them," He cried out that the 
"Committee misrepresents me most grossly;" but the present writer regrets 
that he does not believe such to be the case. 



160 ROGER BROOKE TANEY 

and legalizing the tender of foreign coins of both metals. 
Taney advocated the passage of this measure "with 
great zeal," 37 for he was very anxious to do away with 
paper currency so far as possible. He was in frequent 
correspondence with Benton, 38 had frequent interviews 
with him, while the measure was pending, and rejoiced 
with Benton over its successful passage. 

During the spring, the difficulties with France came 
to a crisis, which appeared to Taney, as he reflected upon 
it years afterwards, 39 the "most dangerous moment of 
General Jackson's administration." At a cabinet meet- 
ing, held shortly after France had refused to appropriate 
the money to pay indemnity stipulated by treaty, 
Jackson stated that he proposed to communicate the 
news of this refusal to Congress, by a special message, 
and to "ask authority to issue letters of marque and 
reprisal against France, in order to indemnify ourselves." 
Taney was surprised by this position, and still more so 
from the support which it received from McLane, the 
Secretary of State, and Cass, the Secretary of War. 
Taney "knew how sensitive General Jackson was upon 
questions, which he thought concerned the honor of the 
United States, and that, upon such occasions, he was apt 
to be prompt in decision and prompt in action; and did 
not always stop to calculate the difficulties in his way, 
or the forces that might be arrayed against him." 
Furthermore, he had consulted with McLane, so that 

36 46 Niles Reg. March 29, 1834, pp. 67, 68. Niles Reg., April 5, 1834, 
refers to Senate vote of March 28 against Taney. An interesting letter from 
Aaron Burr to Van Buren relating to a claim against the United States for 
services in the Revolutionary War, written on March 25 and referred by him 
to Taney, is printed in 5 Md. Hist. Mag. 33. 

"Tyler, p. 216. 

38 Tyler saw the letters. I cannot find them except one printed in 13 Md. 
Hist. Mag. 167. 

39 Letters to Van Buren, April 9, 1860, 10 Md. Hist. Mag. 16 to 22. 



ROGER BROOKE TANEY 161 

Taney "feared it would be very difficult to divert him 
from the course he suggested." Taney, however, felt 
it his "duty to remonstrate, immediately and earnestly, 
against it," calling his "attention to the condition of the 
country," then passing through the darkest days of the 
panic. "We were in no condition to go to war; if it 
could be avoided." France was much better prepared 
than we for war. Taney further "urged that, however 
unjustifiable and offensive the conduct of France might 
be, no such national insult had been offered as to require 
immediate hostile action to maintain our honor, and that 
we should not impair our rights, by forbearing, for the 
present, to assert them by force and until we had still 
further tried pacific measures, and frank remonstrances." 
McLane differed from Taney, and "strongly advised the 
message," arguing that, while there was no "sufficient 
excuse for an immediate declaration of war," yet, "as 
France had acknowledged the money to be justly due, 
and had, by a direct vote of its Legislature, refused to 
pay it, this country, by the law of nations, had a right 
to redress itself," by the use of letters of marque and 
reprisal, and that "such a proceeding was not war 

and would give no just ground for war, or 

complaint, by the French Government." He referred 
to text books and to France's recent action in this way 
toward Portugal. Taney replied that, "although letters 
of marque and reprisal were not War, in the technical 
sense of the word, .... yet no nation that felt 
itself strong enough to vindicate its honor and resent 
insult, would tamely submit to such an indignity, and 
that, however France might have practiced it upon 
Portugal, she would never consent to have it practiced 
upon herself, nor would the French government hazard 
its existence, by permitting such a wound to be inflicted 



162 ROGER BROOKE TANEY 

upon the national pride, without resenting it by a decla- 
ration of war, or immediate hostilities." Taney per- 
ceived that he "had failed to convince the President" 
and "left that cabinet meeting, in a state of greater 
anxiety and alarm than I have ever felt at any other 
moment in my public life," as he wrote Van Buren in 
1860. He felt sure that Congress would not authorize 
the sending out of privateers against France; but he 
feared that the friends of the Bank would be able to 
use such a message to convince the country that Jackson 
"was a rash, reckless man, acting generally from the 
impulses of passion." 

If, in the midst of such distress and anxiety, and upon such a 
cause of quarrel, he recommended a measure, which, if carried 
out, would, inevitably, lead to immediate hostilities with France, 
public confidence in his prudence and discretion would have been 
greatly shaken and the panic and pressure become so intense and 
spread so widely, that his administration would be overthrown in 
less than a month, and the Bank, with all its arrogance and open 
corruptness, fastened irrevocably upon this country. 

"Not one man in a thousand of the people of the 
United States were aware of any serious or irritating 
difficulty with France, that would, by any possibility, 
lead to immediate hostility on either side," and, if such 
a "sudden and unexpected war, for which no prepara- 
tions had been made," should ensue, the "President 
would be held responsible for all the evils that might 
follow" it. 

Feeling sure that Van Buren's "calm and sound judg- 
ment" would lead him to concur" in Taney's opinion 
upon this subject and "knowing the high respect 
which General Jackson held for" that "judgment," 
Taney promptly secured an interview with him. As 
Taney anticipated, Van Buren "took the same view of 



ROGER BROOKE TANEY 163 

the subject," and was successful, in inducing Jackson 
to take a "calm and more deliberate view of the whole 
subject" and to abandon his projected message. In 
this action, Taney undoubtedly rendered a very impor- 
tant public service, though his patriotic motives were 
mingled with fear of the Bank. 

On April 15, 1834, Taney wrote a letter to Polk, the 
Chairman of the Committee of Ways and Means in the 
House of Representatives, which letter concerned 
further legislation concerning, the coinage, and was 
transmitted by Polk to the House, with an endorsement, 
stating the concurrence of the Committee in the posi- 
tions taken by Taney. 40 Taney began, by writing, that 
"It is evident that the chief part of the paper currency 
of the United States must always be furnished by the 
State banks." Congress, in his opinion, had "no power 
to establish by law a paper currency and the influence 
which they may lawfully exercise in securing its sound- 
ness is altogether incidental." These are the views of 
one who was destined long to be Chief Justice, but it 
will be remembered that the Supreme Court finally, in 
the Legal Tender cases, decided otherwise. Taney 
insisted that the currency then was "an immense super- 
structure of paper, resting on a metallic foundation — too 
narrow to support it. It has never been sustained by 
its own inherent strength, but by public confidence. 
With very few exceptions," Taney trust- 
fully thought that the State Banks were "safe as the 
Bank of the United States! for that Bank could not 
redeem all its notes in specie if presented at once!" 
In fact, that Bank, with its "great money power," 
probably "aggravated the situation." 

"The remedy is to diminish the proportion" of paper 
to coin and "to give to the paper currency a broader and 

40 Cong. Debates 23rd Congress, 1st Session, Vol. 10, Part 4, App. 14. 



164 ROGER BROOKE TANEY 

firmer metallic foundation." Taney, therefore, recom- 
mended that (1) there be reformation in the coinage of 
gold, which is worth more than silver, and is, therefore, 
not seen ; (2) that the issue of small notes be prevented by 
not placing public money in any bank, nor receiving in 
payment of public dues, the notes of any bank, which 
issued notes below a fixed amount. This amount should, 
at present, be fixed at $5.00, and should later be fixed 
at $10.00, and eventually at $20.00. Taney could not 
keep the United States Bank out of mind, and held it 
not desirable to abolish the State Banks, or to place the 
business of banking in a monopoly of "great capitalists." 
State Banks, are useful for investment and commerce, 
and would be safe with more metal in circulation. 
Drafts and bills of exchange should transfer funds from 
place to place and serve as institutions of credit. The 
abolition of small notes would save the laboring classes 
from failure and depreciation of paper. The States in 
which banks are located can control them and prevent 
the abuse of power by the President in selecting them. 41 
With the diminished tariff duties under the Compromise 
Act, the deposits would not be so large as to tempt a 
bank, or its stockholders, "to swerve from their duty, 
or to influence many respecting their conduct or 
opinions." Congress might also order the Secretary to 
distribute the deposits among the banks, according to 
the capital of the place where the revenue is collected, 
and to demand security from these banks. This addi- 
tional duty would complicate the operations of the De- 
partment, and perhaps make it necessary to employ one 
or two more clerks. Clearly, Taney was no financier. 42 

41 One wonders how this was to be done. 

42 46 Niles Reg. 145, May 3, presents and criticises Taney's views as to the 
future regulations of the currency, as a plan which will encourage new banks, 
or factories of paper money. 



ROGER BROOKE TANEY 165 

Early in May, the Senate called on Taney for a report 
on the finances, believing, from the memorials of dis- 
tress, that the government would soon be without ade- 
quate revenue, and would have to resort to loans. 
Taney sent in his report by the middle of June, showed 
an increase in every branch of the revenue, and thus 
foiled the plans of the Whigs. 

The Session of Congress now neared its close, and 
Jackson, in accordance with the plan he had made nearly 
a year before, sent Taney's nomination to the Senate on 
June 23. It was promptly rejected on the 24th, the 
first such rejection in the country's history. Taney 
resigned on the following day 43 and returned to the 
practice of the law in Baltimore. 

« Tyler, p. 221, 46 Niles Reg. 326, July 5, 1834. His house in Baltimore 
had been leased, and as the lease did not expire until October, Taney's family 
remained in Washington until then (8 Md. Hist. Mag. 306). Mr. Justice 
Wayne, who was a member of the Supreme Court at this time, in his eulogy of 
Taney after his death, spoke of Taney's course in the Cabinet, as "sincere and 
sustained with ability," of his arguments as Attorney General, as "listened 
to with the marked attention of the court" and of his briefs as "very 
comprehensive." 



CHAPTER VIII 
Resumption of Law Practice (1834-1836) 

On June 25, 1834, the day after the Senate refused to 
confirm his nomination as Secretary of Treasury, Taney 
resigned the office, which under the Constitutional pro- 
vision, he could have held until the end of the Session of 
Congress. He held that it was due to Jackson and himself 
to "conform" to the Senate's decision, and retire at once, 
and took the occasion of his letter of resignation to thank 
Jackson for "many and continued proofs of kindness and 
confidence." 1 Jackson replied at once, "paying a just 
tribute to the patriotism, firmness, and ability," which 
Taney "had uniformly exhibited" in the Cabinet. 
Jackson recalled with gratitude the fact that the post 
of Attorney General was not desired by Taney, as it was 
"in opposition to" his "course of life," to exchange "the 
independence of professional pursuits for the labors and 
responsibilities of the office." This gratitude had been 
"greatly and deservedly increased," when Taney learned 
"the difficulties which surrounded Jackson," and, 
yielding to his "earnest desire to avail" of Taney's 
"services in the Treasury Department," "generously 
abandoned the studies and avocations" of his life, and 
"encountered the responsibility of carrying into execu- 
tion," to use Jackson's words, "those great measures 
which the public interest and the will of the people alike 
demanded at our hands. For the prompt and disinter- 
ested aid" thus afforded Jackson, at the cost of "per- 
sonal sacrifices," the President felt that he owed Taney 
a "debt of gratitude and regard, which" he had "not 

1 The correspondence is printed in Tyler, pp. 221-223. 

166 



ROGER BROOKE TANEY 167 

the power to discharge." Taney had "all along found 
support in a consciousness of right," and might surely 
look for "approbation and applause" from the people. 
"The plan of financial policy which you have initiated 
by your acts," Jackson continued, "and developed in 
your official reports, .... will ultimately, I 
trust, be carried into complete operation and its bene- 
ficial results" will be "more than an adequate compensa- 
tion for the momentary injustice to which you have now 
been subjected." In the grandiloquent and turgid 
rhetoric of the period, Jackson concluded the letter, 
stating that, "as it is the martyrs in any cause whose 
memory is held most sacred, so the victims in the great 
struggle to redeem our Republic from the corrupt domi- 
nation of a great moneyed power, will be remembered 
and honored in proportion to their services and their 
sacrifices." 

Taney now prepared to return to Baltimore, and resume 
the practice of law. His entry into the city on July ll 2 
was a triumphal one. He was escorted by a cavalcade of 
about 200 gentlemen and seated in a barouche drawn 
by four grey horses. The procession repaired to the 
Columbia Gardens, where Taney, Thomas Hart 
Benton, and Congressman Allen of Ohio, spoke, until 
a storm of wind and rain from the north carried away 
the awning from the tables and completely drenched 
the company. A few days afterwards, a public dinner 
was given Taney, and Vice President Van Buren, who 
was unable to be present, sent the toast "Roger B. Taney 
— He has in his last, best, brilliant career, passed through 
the severest ordeal to which a public officer can be sub- 
jected, and he has come out of it with imperishable 
claims upon the favor and confidence of his countrymen." 

2 Tyler, p. 224, 46 Niles Register, Scharf Chron. of Baltimore 471. 



168 ROGER BROOKE TANEY 

In the letter which accompanied this toast 3 the writer 
bore witness to the fact that "an unreserved intercourse" 
with Taney, while he was in the Cabinet, enabled Van 
Buren to "appreciate his intellectual and moral worth 
and his unsurpassed devotion to the best interests of 
our country." 

Shortly before leaving Washington for Baltimore, 
Taney wrote Jackson of the projected reception and 
dinner, and then added: "You know this is my first 
trial in this way, and I am not sure that I am very well 
fitted for such scenes, and, under any other circum- 
stances, would excuse myself. But at present, it seems 
to be a matter of duty, and is, moreover — I acknowl- 
edge — not a little gratfying." While he had no "desire 
to be a table orator, yet" he "was quite willing to make 
a speech" at the dinner proposed to be given him. 4 

Taney took the opportunity of the letter to testify 
that Mr. Gilpin appeared to be "eminently qualified 
for the station" of Governor of Michigan Territory, 
which position he desired, and that the writer should 
"feel gratified at seeing him" obtain the office. Gilpin 
had been persecuted by the Bank and its adherents and 
his "services and firmness" had impressed Taney favor- 
ably. During the "severest time of the struggle," 
Taney was in "constant correspondence" with Gilpin, 
who never "wavered." 

3 Tyler, p. 225. 

4 In the same letter, he referred to the Bank's correspondence with the 
New York Committee and with the Senate Committee of Finance, as "ex- 
traordinary acts of folly. The admission that they contain, the curtailment 
until they found that Congress would do nothing for them, is perfectly true. 
But, as they do not mind the truth when it stands in their way, I wonder they 
should have taken pains to publish what ought to ruin and disgrace them, if 
there was no other proof on the subject. Their agreement to open everything 
to the Senate's Committee, composed as it is, is, if possible, worse after the 
ground taken with the Committee of the House." 



ROGER BROOKE TANEY 169 

Taney and his family had just returned from a little 
excursion to Harper's Ferry with Van Buren, who was 
well received, and "saluted according to his rank." " In 
the evening, a volunteer band of music of young mechan- 
ics, waited upon him and played many patriotic airs." 
Taney was satisfied that Van Buren would "gain more 
and more favour, as he mixes more with the people." 

Frederick, Taney's former residence, vied with 
Baltimore in the effort to do Taney honor, and tendered 
to him a public dinner on August 6. Francis Thomas, 
the Representative of Western Maryland in Congress, 
welcomed him, 5 speaking of the audience as composed 
of "Jackson Republicans." Taney's reply expressed his 
gratification for the honors with which he had been 
received by his "fellow citizens" of Frederick City and 
County. Then he said that 

I lived so many years in the midst of them and that residence 
is endeared to me by so many cherished recollections, that I 
never find myself approaching Frederick, without feeling as if 
I were again bending my footsteps to my own home, again to 
dwell in the midst of a people, whose long continued kindness 
to me I can never forget and shall warmly and gratefully bear in 
my memory to the latest hour of my life. 

When he became Attorney General, most of the 
people of the United States were strangers to his name, 
he said, for he had never been in Congress. The office 
of Attorney General does not make one's name a familiar 
one. Consequently, when attacks were made upon him, 
he could not appeal to the previous knowledge of persons 
outside of Maryland. Marylanders alone knew his 
"long life passed in the honest endeavor to discharge, to 
the best of my powers, my duties, as a man and a 

6 46 Niles Register, August 30, 1 834. Tyler, p. 226. 



170 ROGER BROOKE TANEY 

citizen." A " great moneyed corporation" had entered 
politics and was preparing to obtain, "by means of 
money, an irresistible influence in the affairs of this 
nation." If it should have succeeded, "the liberators 
of the country would soon be destroyed" and "the power 
of self-government would be wrested from the people." 
His tenure of the Secretaryship of the Treasury had 
brought upon him "a deep and enduring spirit of hos- 
tility," and that spirit pursued him "with unwearied 
perseverance." "No man," Taney believed, "who has at 
any period of the world stood forth to maintain the liber- 
ties of the people against a moneyed aristocracy grasping 
at power, has ever met with a different fate. Its unrelent- 
ing, unquenchable hate has never failed to pursue him 
to the last hour of his life, and even in his grave." The 
political feeling of the times ran so high that even so intel- 
ligent a man could believe that such a statement was the 
truth, and Taney was too honest to have said what he 
did not believe. He felt that he could appeal to Mary- 
land men, especially to the inhabitants of Frederick 
among whom he had lived for twenty-two years, and he 
closed his speech with an eulogy of Thomas's course in 
the House of Representatives in regard to the United 
States Bank. 6 

After these remarks, Taney went to the Court House 
Square, where seventeen tables had been spread and 
where he dined with hundreds of those who had listened 
to him. 

Even at that time, Taney's former Federalism was 
recalled, and it was said 7 that "no one will pretend to say 
that" Taney or McLane was a Democrat. "The party 

6 Tyler, p. 233, wrote that Taney considered this compliment of the citizens 
of Frederick as "one of the glories of his life." Taney sent Van Buren a copy 
of this speech, asking for his opinion upon it. 8 Md. Hist. Mag. 305. 
7 47 Niles Register, September 13, 1834. 



ROGER BROOKE TANEY 171 

distinctions were kept up in Delaware and Maryland a 
long while after they had been exploded in every other 
State, and these gentlemen were the heads of the Federal 
party in their respective States for several years after 
General Jackson had recommended the destruction of 
the monster-party spirit to President Monroe." 

A third public dinner was given Taney at Elkton, on 
September 4. 8 Many of the subscribers were unknown 
to Taney, a fact which made the dinner to be considered 
a greater honor to him. He told the audience again of 
the greed and hatred of the "moneyed aristocracy," 
and of his acceptance of the Secretaryship through hard 
necessity. He believed that the plans had been delib- 
erately formed to place the money concerns of the coun- 
try in such a situation that it would be in the power of 
that great monopoly, the Bank of the United States, to 
rule or ruin this noble people." As Attorney General, 
Taney had advised the removal of the deposits, never 
expecting to carry out that device, but he found that 
either the measure must be abandoned and that "a 
great moneyed corporation would fix its deadly fangs in 
the free and glorious people," or the President must, 
"immediately, fill the Treasury Department with a 
Secretary, whose opinions concurred with his own." 
Taney continued: "I could not, without dishonor, 
shrink from the responsibility of executing what I had 
advised should be done." He understood that his 
nomination as Secretary of the Treasury had been 
"rejected by a silent vote," yet Webster, who had given 
one of these votes, had followed Taney "with the spirit 

8 Tyler, p. 233, 47 Niles Register, October 18, 1834. Taney explained this 
attack on Webster when writing Van Buren on September 16, 8 Md. Hist. 
Mag. 306. Taney said Van Buren's letter to him had been opened in his 
absence and forwarded to him as "my folks at home have a license to open 
my letters when I am away." 



172 ROGER BROOKE TANEY 

of hostility in private life" and had spoken of him at 
Salem as the "pliant instrument of the President, ready 
to do his bidding." Taney was not content with a 
defence. He attacked Webster, who had "found the 
bank a profitable client." 

Taney then continued his usual offensive against the 
"bank, chartered by Congress, acting towards the people 
of the United States in the spirit and temper of a foreign 
enemy." Jackson's conduct had not caused the evils, 
but the "powerful corporation, and those who defend it 
seem to regard it as an independent sovereignty and 
have forgotten that it owes any duties to the people, or 
is bound by any laws but its own will." He recited the 
stock charges against the bank, and then continued: 
"It is not in the nature of a moneyed power to compre- 
hend the feelings of independent Freemen." The Bank 
had not rightfully regulated currency. Gold should be 
currency, and was such before the Bank was chartered. 
Taney felt that one of his proudest recollections would 
be that, while he was Secretary of the Treasury, measures 
were started which will restore gold currency, and rescue 
the people "from the power of a heartless moneyed 
corporation." He praised Benton and Jackson, who had 
been foremost in the struggle against the Bank and "in 
the measures for maintaining union." The Bank is 
"now the great question." 

Taney was an "inordinate smoker of cigars" and two 
boxes of his favorite brand were sent him while he was 
Secretary of the Treasury 9 by Mr. Samuel Thomas, 
formerly of Baltimore, who was then connected with 
Custom House at New York. Taney did not know who 
the donor was. About the time that he left the Cabinet, 

9 Tyler p. 235. 



ROGER BROOKE TANEY 173 

he learnt from whom the cigars came, and his high sense 
of official integrity was such that he sat down at once 
and wrote Mr. Thomson that he could not accept the 
cigars as a present, but would be glad to keep them and 
pay the market value of the cigars. Courteously, Taney 
insisted that Mr. Thomson "must not feel any mortifi- 
cation" at this act 

But it has been a fixed rule with me to accept of no present, 
however trifling, from any one, the amount of whose compensation 
for a public service depended on the department over which I 
presided. You will, perhaps, smile at what you may think my 
fastidiousness about such a trifle as your cigars. But I have 
thought it the true rule for a public man, and that it ought to be 
inflexibly adhered to in every case, and without any exceptions in 
the smallest matters. And having constantly acted upon it, 
I cannot consent to depart from it in this case, and trust that you 
will not suspect me of doubting for a moment the kindness and 
integrity of the motive which influenced you to send them. 

Mr. Thomson replied that he thought Taney "almost 
fastidious" and felt that the rules which might have 
guided Taney as Secretary of the Treasury did not apply 
to Taney as a private citizen; but that, if his "fine 
feelings and independent spirit will not allow this, he 
might return the cigars" or send their value, ten dollars. 
In a very polite note, Taney enclosed that amount of 
money, and added that "I hope that you do not doubt 
that I feel as much obliged by your kind intentions, as 
if I had accepted them as a present." 

On October 12, Taney wrote from Baltimore, to Jack- 
son, at the end of a two weeks' illness, which had made 
him unable to bear the journey to Washington, in order 
to congratulate Jackson upon his safe return thither. 
At the time of writing, Taney was compelled to be in 
court by professional duties, although he was hardly fit 



174 ROGER BROOKE TANEY 

to attend to business. He was "mortified and disap- 
pointed" by the "total defeat" of the Democrats in the 
recent election in Baltimore City and throughout 
Maryland. Taney explained : 

The truth is that our friends saw that there had been such a 
decided reaction in favor of the administration since the last 
spring, and that our friends were so much excited and roused that 
they counted on carrying the elections by the mere force of public 
opinion. There was no party organization of the least value on 
our side. But on the side of the adversary, there was the most 
complete party arrangements and discipline and carried out in 
such detail that it reached every man in the State who could in 
any way be influenced. They have spent enormous sums of 
money for the Bank and the entire moneyed interest of Baltimore 
were determined, cost what it would, to wreak their vengeance 
on me and to procure such a result in Maryland as would be most 
mortifying to me, and such as they hope may affect my character 
and standing in other States. 

Taney anticipated "a like hostility to me in my pro- 
fessional pursuits." However, "we shall renew the 
contest with vigor" and hope to regain the State before 
the Presidential election of 1836. Taney had sublime 
certainty that he was right. "The march of public 
opinion may be checked for a time by the profuse expen- 
diture of money and the vehement exertions of the 
adversary. But I have unshaken confidence in the 
virtue and intelligence of the people, and am quite sure 
that they will soon come right. How fortunate it is that 
you brought on the contest early! It is so manifest 
that, if it had been delayed until the charter expired and 
the sufficiency of the State Banks had not been proved 
by actual experience in the meantime, the Bank could 
have ruined the country, or have extorted a recharter." 



ROGER BROOKE TANEY 175 

Taney rejoiced that Mr. Woodbury, his successor, 
would be able to pay off the entire balance of the national 
debt, after "all the claims of public distress and failing 
revenue." Taney thought it would be a "memorable 
item for the next presidential message," and that it 
was the first time in the history of nations that a large 
public debt was entirely extinguished. He closed his 
letter with a quaint prophecy: "When we are clear of a 
National Debt and a National Bank, the Republic will 
be safe!" 

The public men of the day wrote orations to each 
other, under the guise of private letters. On October 20, 
he wrote Jackson a second letter, in answer to one sent 
him on the 13th, not yet being well enough to come to 
Washington. Jackson had learned from Taney's 
"amiable family" that he expected to come to Washing- 
ton, but now was informed that he would not come 
before the return of his family to Baltimore, and wrote 
to express regret at this decision, as he wished to consult 
Taney concerning his message. He also asked for 
Taney's opinion as Attorney General on the United 
States Bank's claim for damages, and closed by saying: 
"Nothing will afford me more pleasure (than) to see you 
as a private friend, and shake you by the hand. You 
have my warmest friendship and most ardent wishes 
for your prosperity and happiness thro' life and that of 
your amiable family." 10 

A severe cold caught by Taney at Elkton, had been 
followed by rheumatism, and he could not move with- 
out pain, while his recovery was retarded by his neces- 
sary daily attendence upon court. He continually 
pictured himself as a martyr: "In the vindictive spirit 
which prevails towards me," he wrote Jackson, "among 

10 4Md.Hist. Mag. 303. 



176 ROGER BROOKE TANEY 

many of the moneyed men of the place, I am obliged to 
give strict attention to my professional concerns, in 
order to sustain myself against the influence which is 
seeking to prevent me from reestablishing my former 
practice." He hoped to come to Washington early in 
November, and would prepare another opinion on the 
Bank's damages on the French bill, if the one cannot 
be found which he had previously given to a member of 
the Committee of Ways and Means of the House of 
Representatives. The Democratic successes in elections 
in Pennsylvania and New Jersey pleased him, as did the 
fact that the Senate would soon cease to have an anti- 
administration majority. The Bank and its partisans 
have been more successful in Maryland than they are 
likely to be anywhere else, and peculiar exertions were 
no doubt made here, as a mark of their especial favour 
to me." He was very hopeful for the future, and con- 
tinued: "I am satisfied that, in less than a twelve- 
month from this time, the opposition will be over- 
whelmed and broken to pieces by the force of public 
opinion," and the "whigs" will have to "rack their 
powers of invention to find out some new name and will 
be as glad to disavow their connection with the Bank." 

Jackson wrote again on November 8, rejoicing over 
the result of the election in New York, and that Taney's 
health was improving and urging him to "Remember 
I have a bed and room for you." 11 

Taney wrote Van Buren on September 16, 1834, con- 
cerning his Elkton speech, and concerning the doubtful 
political prospects in Maryland. 12 On March 25, 1835, 
he wrote Van Buren again on the political outlook, and 
on a vindication which Van Buren had prepared of his 

11 4 Md. Hist. Mag. 304. 
u 8Md. Hist. Mae. 305. 



ROGER BROOKE TANEY 177 

instructions to McLane — a paper which Taney regarded 
as "conclusive." He felt more sanguine in writing a 
third letter to Van Buren on May 12, for he found the 
appointment of Amos Kendall as Postmaster General 
was popular, and the Virginia elections had resulted 
favorably to the Jackson candidates. Benton's effort 
to "expunge" the Senate's resolution condemning Jack- 
son and Taney, pleased the latter greatly, and he thought 
of "writing the history of the period, with names and 
things at full length and in plain words." 

Still another letter, congratulating Van Buren upon 
his nomination for the Presidency, was written him by 
Taney, on June 2, 1835. He had a more serious inten- 
tion of writing the history of Jackson's Bank policy, and 
asked Van Buren's advice in the matter. 

So late as November 20, Taney had not been able to 
go to Washington. The New York elections were 
"gratifying" beyond his hopes. After such a "decisive 
and final" popular verdict, Taney vainly hoped that 
"we shall now have peace for many years. The ques- 
tion of the succession 13 is already decided and it would 
be amusing enough to witness the meeting of the chief 
panic makers, when they come together at the approach- 
ing session of Congress." He thought that the "Bank 
partizans" might now become "less clamorous" and 
"feel that they have had enough of the war." 14 

Whether Taney was right or not, in thinking there was 
a concerted attempt to prevent his professional career 

13 To the Presidency. 

14 In this letter, Taney referred to an outbreak of cholera in Baltimore, con- 
veyed the best wishes of "Mrs. Taney and the girls," and expressed the feeling 
that Secretary Woodbury's movement on the Branch Bank is a "proper step 
toward the winding up of the Bank, and the time for it has been well and ju- 
diciously chosen." Taney added that "The public mind is, I have no doubt, 
ready to sustain him." 



178 ROGER BROOKE TANEY 

being a successful one, it is certain that he had not in 
the higher courts as large a practice as he enjoyed before 
entering the Cabinet. 15 In 1835, he lost the only case 
he argued in the Supreme Court, 16 in which Kennedy and 
Meredith opposed him. 

In 1834, he argued in the Maryland Court of Appeals, 
one case, 17 and, in 1835, he appeared as counsel in five 
cases. 18 The last of these has some interest, and dragged 
over several years, the bill having been filed in 1828. 
An Irishman died intestate without heirs in Frederick 
County, and Taney opposed the receiving of his es- 
cheated estate by the Frederick County School, of whose 
Board of Trustees he had formerly been president. Dur- 
ing the trial of the suit, the School, which was a County 
Academy for boys until it was closed in 1915, changed its 
name to Frederick College, by legislative amendment of 
its charter. This case, which again connects Taney 
with Frederick and which he lost, seems to have been 
the last one which he ever argued in a court of last 
resort. 

15 We find a written opinion in the New York Public Library, dated January 
17, 1835, as to the rights of Stockton and Stokes to the contract made on Octo- 
ber 15, 1831, to carry the mail from Baltimore to Washington and Philadelphia. 

16 Ortitique v. D'Arcy. 9 Peters 692. A case in assumpsit. 

17 State v. Bank of Md. 6 G. and J. 205. Taney, Dixon, and Price v. Reverdy 
Johnson and McMahon. Taney lost. Preference for the State asked in the 
debts of an insolvent. 

18 Duvall v. Farmer's Bank 7 G. & J. 44. Taney and Boyle against Alexan- 
der, Magruder, and Reverdy Johnson. The case was upon a promissory note 
and came up from Anne Arundel County. Taney won it. (2) Farmer's 
Bank v. Duvall; 7 G. and J. 78. Magruder and Reverdy Johnson against 
Taney and Boyle. The case was from Prince George's County upon an 
endorser's liability, and Taney won it. (3) Boteler v. State. 7 G. & J. 109, a 
suit for debt, from Prince George's County, which Taney and Pratt lost to 
Reverdy Johnson and Magruder. (4) Berrett v. Oliver, 7 G. & J. 191, a suit 
in Chancery to have deeds annulled, which Taney and G. H. Steuart lost to 
Alexander and Reverdy Johnson. (5) Thomas v. Frederick County School, 
7 G. & J. 369. Taney, William Schley, and Balch lost the case to Ross and 
Reverdy Johnson. 



ROGER BROOKE TANEY 179 

Gabriel Duvall, before whom Taney argued his first 
case in the Mayor's Court of Annapolis, was appointed 
Associate Justice of the Supreme Court of the United 
States in 1811. In old age, he was violently opposed to 
President Jackson; but, when he was told by Thomas 
William Carroll, Clerk of the Supreme Court, that Taney 
would be appointed to the vacancy if Duvall resigned 19 
the aged Justice determined, in January, 1835, to leave 
the Bench. 

President Jackson nominated Taney to fill the place, 
and the venerable Chief Justice Marshall, although he 
had a particular dislike to Jackson and his policies, 
privately advocated confirmation of the nomination. 20 
In spite of this fact, when the nomination was brought 
up, at the last moment of the Session of the Senate, it 
was indefinitely postponed, and, consequently, Taney 
met rejection at the hands of that body for the sec- 
ond time. 

Taney's intimate relations with Jackson continued 
throughout the year 1835, and, on November 21, the 
former submitted to the President a long opinion, 21 
opposing any charge on deposits in State Banks, as pro- 
posed by Secretary Woodbury. The Bank of the 
United States had paid none. Taney argued that: 
(1) it was wrong in principle to collect money from the 
many to lend it out to the few to enable them to specu- 
late; (2) it would "endanger the purity, or hazard the 
loss of the public money, for if the rate be low, it would 
be a favor," and, if the money were given to the highest 
bidder as to interest, "a needy, unsafe corporation" 
would get it; (3) the legal effect would be a formal loan 

19 Tyler, p. 239. 

20 Tyler, pp. 240-241. 

21 Written by Taney on the eve of going to Annapolis to try a case there. 



180 ROGER BROOKE TANEY 

of public money, for it would be loaned to banks, who, 
instead of having millions to produce when called for, 
would be debtors for millions. The right to loan out 
public money by banks had never, and should not be, 
admitted. They do so on "their own responsibility." 
If the banks, when asked for money, should reply it was 
loaned, the Government would reply it was "a mere 
deposit — a trust in your hands." Then it would be a 
breach of faith, so to treat the Government's money 
that it could not be returned, when the public might 
want it. A payment of interest implies a right to loan 
the money upon which the interest is paid. The only 
advantage gained by a bank would be to "allow it to 
trade freely and with less reserve, upon its own means." 
It is not "safe to stimulate the deposite banks to trade 
largely upon the public money." 

A fourth argument is that the "deposite banks" kept 
large balances in the hands of other institutions of good 
credit. They could not do this, but must "rigidly 
exact these balances," if interest were charged upon the 
deposits. 

In the fifth place, if the Federal money were all loaned 
out, " the deposite banks would be no stronger than other 
banks, in case a run was made upon them, and so they 
could not support public credit. The fact that they held 
public money in their vaults, would be of great value 
in averting a panic." 

His last head was that, if interest were paid on the 
deposits, no further service to the public could be ex- 
pected of banks, yet the Government needs other impor- 
tant services, in domestic exchange and in bringing gold 
into circulation. 

Taney thought that the Bank of the United States had 
not given up hope of a recharter. The "struggles of 



ROGER BROOKE TANEY 181 

moneyed aristocracy to obtain power never cease and 
never can be expected to cease, until the nature of man 
be changed." The Bank's partisans hoped to embarrass 
the Deposit Banks and destroy their usefulness, Taney 
believed, under pretence of regulating them. He trusted 
that Jackson's friends would not be deceived. After 
two years from the removal of the deposits from the 
United States Bank, Taney maintained that the measure 
"has succeeded to the extent of our sanguine expecta- 
tions," and that no new regulations were needed. 
Instead of the predicted bankruptcy, it was gratifying to 
see a "prosperous country and an overflowing treasury." 

In January, 1836, Taney was invited to a public dinner 
to be given in Cincinnati, in celebration of the expira- 
tion of the charter of the United States Bank. Unable 
to attend the dinner, 22 he sent this toast: "The gold 
coins — long exiled from our country for the benefit of 
the few — they are now returning for the benefit of the 
many." 

Chief Justice Marshall died in the summer of 1835. 
Mr. Justice Story would have been promoted to the 
vacant post, if fitness had been the only consideration. 
But Jackson believed in Taney's ability, felt that he 
must vindicate his friend from the assaults which had 
been made upon him, and wished to reward the political 
service which Taney had rendered him. During the 
autumn, there were rumors that Taney would be ap- 
pointed and these rumors were confirmed when Taney's 
nomination was sent to the Senate on December 28. 23 

In the past year, the political character of the Senate 
had considerably changed, but Taney's chief opponents 
were still there and endeavored, with great determina- 

22 Tyler, p. 242. 

23 Tyler, pp. 249-252. 49 Niles Register. 



182 ROGER BROOKE TANEY 

tion, to prevent a confirmation of the nomination. Clay 
and Webster led the opposition, but the nomination was 
finally confirmed on March 15, 1836, by a majority of 
14 votes. Twenty-nine senators voted for confirma- 
tion and two of them are said to have been once those 
who voted against him, when nominated as Secretary of 
the Treasury. 24 In later years, another of his opponents 
changed his opinion, 25 for Clay told Reverdy Johnson 
that he found Taney so good a Chief Justice that he 
asked for an interview with him, and, at that time, said: 

Mr. Chief Justice, you know that, in my place in the Senate, 
before your nomination to the office you now fill was submitted to 
that body, as well as during its consideration, I said many harsh 
things of you. At the time, I thought they were called for by my 
duty to the Senate and to the country, and, under like circum- 
stances, with no other knowledge of you than I then possessed, I 
should pursue the same course. But I now know you better. 
I have carefully and anxiously watched your career on the bench 
and have sometime since become satisfied that I had done you 
injustice. I am now convinced that a better appointment could 
not have been made, and that the ermine, so long worn and honored 
by Marshall, has fallen on a successor (what higher praise could I 
give you?) every way his equal and I have sought this interview 
so to say to you. 

Johnson added that the "mutual confidence" thus 
established, continued to the last. 

In 1835, on account of the failure of certain banks in 
Baltimore and the acerbity of feeling thereby aroused, 
a mob sacked the house of Reverdy Johnson and of 
some other gentlemen connected with these banks. 26 

24 Van Santvoord, "Lives of the Chief Justices," p. 565. 

25 Reverdy Johnson's remarks in meeting of Baltimore Bar after Taney's 
death. 

26 See Steiner's "Life of Reverdy Johnson," p. 14. 



ROGER BROOKE TANEY 183 

Taney "at once took a decided stand 27 against the out- 
rage and the resentment; and maintained that the suf- 
ferers from the mob were entitled to an indemnity for 
their losses from the City of Baltimore, which was 
bound to protect every member of the community from 
violence by other members of the same community." 
By his advice, a petition was sent up to the Legislature, 
asking for indemnity. Mr. Taney prepared himself to 
argue the question before the Legislature, but was pre- 
vented from doing so, because he had, in the meantime, 
been nominated for Chief Justice." 

Taney did not hesitate to give Johnson his "profes- 
sional aid, as soon as he asked for it," both because 
Taney felt that he owed Johnson much "for the prompt- 
ness with which he" at Taney's "request, investigated 
the affairs of the Union Bank, and saved me from the 
treachery of Ellicott" and also to show that he "did not 
sanction the disreputable design" of influencing, by a 
mob, a trial in court, nor "countenance the still more rep- 
rehensible scheme of associating the name" of the Demo- 
cratic party with any mob for the destruction of prop- 
erty. He wrote Van Buren to this effect on March 7, 
1836, and stated also that attempts had been made to 
intimidate him from coming to Annapolis, to perform 
his duty, and asked that his nomination be not 
confirmed, until this argument was over. An im- 
mediate confirmaticn might look as if Taney's "friends 
had interposed to prevent the argument" and subject 
him to unworthy suspicion." 

"Tyler, p. 243. Tyler added "though the nomination" to the Chief 
justiceship "was still pending, his scrupulous sense of propriety forbade him to 
argue a cause." The letters to Van Buren printed in 8 Md. Hist. Mag. 313 
& ff . show that this statement is not correct. 



184 ROGER BROOKE TANEY 

On the next day, Taney wrote a second time to tell 
Van Buren that, as soon after his speech as his friends in 
Washington "think right," he "should be glad to have 
the matter disposed of finally." He thought the party 
prospects in Maryland were good, and rejoiced in the 
splendid termination of Jackson's public life through 
the settlement of the difficulties with France. When 
Taney could come to Washington, "without incurring 
the suspicion of coming to electioneer with the Senate," 
he expected to "take an early day to pay" his "respects 
to his friends there and rejoice with you" over the politi- 
cal prospects. 

On March 10, he wrote a third time, asking that action 
upon the nomination be no longer postponed, and on the 
15th, a fourth letter dated at Baltimore, was sent Van 
Buren, suggesting that Upton S. Heath be appointed 
United States District Judge in the place of Elias Glenn, 
who was about to resign. Taney was much disturbed at 
the report which had reached him that his "sincere and 
excellent, but most injudicious friend, Mr. Key, had put 
to hazard by his conduct all the prospects of my future 
life," by suggesting a further postponement of action 
on Taney's nomination. Taney felt that he had "al- 
ready done everything which duty to myself and others, 
required, in the case" of Reverdy Johnson and John 
Glenn, and hoped soon to be relieved "from the painful 
and embarrassing position in which I have been so long 
placed," with "an active and vindictive opposition to 
me, in the Senate and out of it, also ready to take advan- 
tage of any unforseen event to defeat me." Taney now 
wrote that " I have no desire that my nomination should 
be postponed an hour, on account of my engagements 
at Annapolis, and I do most anxiously desire not to 
be surrendered by my friends to the mercies of my 
adversaries." 



ROGER BROOKE TANEY 185 

The last letter of this series was sent by Taney from 
Annapolis, three days later. The hearing before the 
House of Delegates had been again postponed on the 
application of the corporation of Baltimore. Taney now- 
felt that he had done enough to show that he was not to 
be intimidated "from the discharge of a clear duty" 
and did not "wish the action of the Senate upon my 
nomination to be retarded or hastened on account of 
my engagements here." When Taney retired from the 
case, he placed his notes in the hands of John V. L. Mc- 
Mahon, Esq., and merely appeared as a citizen, to advise 
the passage of the bill. McMahon's eloquent speech 
in behalf of the bill was ably supported by Taney's 
influence with Jackson. Reverdy Johnson and some of 
the other men whom the bill proposed to indemnify, 
were Whigs and there was some opposition among the 
extreme Democrats in the General Assembly to the 
passage of the measure. It was even said that Jackson 
opposed the bill. Taney thereupon, asked Key, his 
brother-in-law, to go to Jackson and avert the influence 
of Jackson's supposed hostility. Key did so on the 
evening of March 14, and wrote, immediately, to 
Taney, 28 that the President expressed himself, "in 
strong and decided terms, that the persons whose 
property had been destroyed ought to be fully 
indemnified by the community where the outrage had 
occurred and denied, positively, that he had ever 
expressed any other opinion." The Legislature passed 
the bill. 

All things had been prepared for the simple ceremony. 
Taney closed his political career and began his judicial 
one on April 2, 1836. On that day, his long tenure of 
the highest judicial office in the Republic, began. On 

28 Tyler, p. 244. 



186 ROGER BROOKE TANEY 

Monday, at 11:00 a.m., 29 Elias Glenn, United States 
District Judge for Maryland, and Nathaniel Williams, 
the United States District Attorney, together with the 
Marshal and the Clerk of the Court, waited upon 
Taney at his dwelling and accompanied him across the 
street to the Circuit Court Room, where Judge Glenn 
administered the oath of office to Taney before a large 
assemblage of people. 

" 50 Niles Register 73. 



CHAPTER IX 

Chief Justice of the Supreme Court of the United 

States (1836-1846) 

On Monday, March 28, 1836, the oath of office as 
Chief Justice, was administered to Roger B. Taney, 
in the presence of many lawyers and some other citi- 
zens. 1 He had reached the highest judicial post in the 
country and begun a career of twenty-eight years on the 
bench, in which he followed a great jurist — John Mar- 
shall. Reverdy Johnson, the leader of the American 
bar — in a letter written Taney's biographer on July 6, 
1871, wrote that as a judge Taney "was not only emi- 
nent; but, in the opinion of many, including, as I 
know, Mr. Clay, was fully equal to his great prede- 
cessor." 2 Posterity has not agreed with this favorable 
estimate, however, and has rated Taney's services too 
low rather than too high. He has been considered a 
States' rights judge, or a "partisan of the extreme 
Democracy" with Jackson, 3 but this estimate is not 
correct, as we shall see. 

He studied Lord Bacon's "Maxims" 4 and praised 
Bacon's speech to Justice Hutton, 5 adding the counsel 
that a judge should be "punctual and exact punc- 
tuality from others." He lived up to this principle. 
The story is told that a tradesman, with whom he 
dealt, lamented in his presence that he could not ob- 
tain from his lawyer a sum of money which the latter 

1 Scharf, Chronicles of Baltimore, p. 419. 

a 13 Md. Hist. Mag. 170. 

3 Willoughby, Supreme Court, p. 93. 

* Taney's Decisions, 618. 

* Bacon's Works, vol. 4, London Edition, 1803, p. 507. 

187 



188 ROGER BROOKE TANEY 

had collected for him. Taney sent for the lawyer, 
on the following day, and, ascertaining that the facts 
were as the tradesman had stated, told the lawyer that, 
unless the money were at once forthcoming he could 
not longer practice in the United States Court, for 
Taney would see to having him disbarred. 6 

Of his bearing in court, in the early years of his 
judicial service, we have an account from an admirer: 7 

His manner was strikingly impressive, when his slow and 

solemn form was seen rising in court He moved 

along, like the majestic Mississippi: full, clear, and magnifi- 
cent So soft and amiable was his deportment, that, 

even amidst the heat and turmoil of nisi prius litigation, he was 
never known to offend the feelings of any of his brethren: his 
conversation was never roughened by austerity, or pedantry, and, 
when his gallant bearing extorted from all the most unfeigned 
praise, he would almost hide himself from public admiration with 

the unaffected modesty of his native character In 

his person, he is full six feet high, spare yet so dignified in deport- 
ment that you are at once impressed with an instinctive reverence 
and awe. His eye is full of genius and indicative of the powerful 
mind that dwells within, his features are marked with the deepest 
thought, and his manner is so dignified that he sheds around him, 
in whatever circle he may move, a moral influence of the highest 
order. 

To the country at large, he was known only as an 
"astute and skillful lawyer" and an "ardent partisan 
and supporter of Jackson," who had forced his nomina- 
tion upon the senate, because of his own high opinion 
of Taney. 8 When Taney became Chief Justice, Story 

6 Recollection of E. Glenn Perine, Esq. 

7 4 So. Lit. Messenger (June, 1838) 349. The article is signed: "A Gentle- 
man of Maryland." 

8 15 Atlantic Monthly, C. M. Ellis 151, Tyler 252. 



ROGER BROOKE TANEY 189 

was the greatest of the Associate Justices. Taney wrote 
in later years 9 that he was "not only one of the most 
eminent jurists of the age; but, for a long time, one of 
the brightest ornaments of the Supreme Court of the 
United States." Story had been "locum tenens" of the 
Chief Justiceship, to use his own words, 10 in the interim 
after Marshall's death, and most lawyers thought 
that he should have been given the position perma- 
nently. At first, Story was pleased with Taney and he 
wrote Charles Sumner, on January 25, 1837: "Our 
new Chief Justice conducts himself with great urbanity 
and propriety." 11 He soon changed his opinion, how- 
ever, for three important cases involving constitutional 
questions were decided by the Court, in the course of the 
next few months, and Taney voted in each one of these 
In the majority and in opposition to the views held by 
Story and Marshall. As a result, Story wrote Miss 
Martineau, on April 7, 1837: "I am the last of the 
old race of judges. I stand their solitary representa- 
tive with a pained heart and subdued confidence." 12 
Story wished to resign, because the majority of the 
court was "inclined to a more rigid construction of the 
federal powers in favor of State rights" and because he 
had "become convinced that a new era had come and 
that, with the spirit which now animated the Court, he 
could not hope to agree with them on constitutional 
points." 13 He reconsidered his decision, however, and 
continued as an Associate Justice, until his death in 1845. 

9 Ex parte Merryman. Tyler, p. 656. 

10 Story's "Life of Story," II, 223, 227. Letter of February 8, 1836, to 
Miss Harriet Martineau, in which Story wrote that he expected Taney's 
confirmation. 

11 Story's Story, II, 266. 

12 Story's Story, II, 277. 

13 Story's Story, II, 271. 



190 ROGER BROOKE TANEY 

With Taney, truly begins a new period in the Court's 
history, "an era of individual views, of doubts, and 
queries, of numerous dissenting opinions, of strict con- 
struction of the Constitution." To all this, we may 
well assent, though we may hesitate to follow Hampton 
L. Carson to the end of his sentence: "of state ascen- 
dancy, of final submission to what Von Hoist has called 
the slavocracy;" for Taney was never a States Rights 
man, but an old fashioned Federalist to his death. 14 
Carson's estimate of Taney is of value: 

In knowledge of technical details in all departments of legal 
learning, in the mastery of principles derived from constant and 
varied occupation in the argument of causes in Courts of inferior 
and superior jurisdiction, both State and National, he excelled 

every one of his predecessors Delicate in health, 

but vehement in his feelings and passionate in temper, he ex- 
pressed himself at times with extraordinary vigor and acted with 
promptitude and decision. He was a man of the highest integrity 
and of great simplicity and purity of character. By watchfulness 
of himself, he had acquired perfect self-control; his courage was 
unflinching, his industry was great; and his power of analysis was 
unusual even among men remarkable for such a gift. His judicial 
style was admirable, lucid and logical, and, like his arguments, 
displayed a thorough knowledge of the intimacies of pleading and 
niceties of practice, as well as a thorough comprehension of under- 
lying principles. 15 

He adhered closely to the language of the Consti- 
tution and even read it as a "penal statute" and was 
anxious to protect the States in the full exercise of their 
reserved powers. 

" Carson's "History of the Supreme Court of the United States," 289. 
» "History of the Supreme Court," p. 291. 



ROGER BROOKE TANEY 191 

His mind 16 never "exercised the great, or predominat- 
ing, influence over his associates, which had been 
characteristic of Marshall. The practice of making 
the Chief Justice the organ of the Court in delivering 
opinions was abandoned, partly, as his associates have 
told us, because, free from vanity himself, Taney was 
earnestly desirous of giving them all an opportunity 
of expressing their views; but, chiefly, as any close 
student of the decisions cannot fail to perceive, because, 
upon constitutional points, the Court lacked cohesion." 17 

It is ominous of Taney's judicial career that the 
first case reported after he came upon the bench is one 
in which he was in the minority 18 and the first opinion 
that he filed, embodying the decision of the Court, 
was in a case in which the question of slavery entered 
and which was decided favorably to the slaveholder. 19 
Although five of the seven justices who sat 20 came from 
the free States, the abolitionists felt 21 that the slave 
power began, from that time, to look upon the Supreme 
Bench as its surest defence. 22 

10 "History of the Supreme Court," p. 337. 

17 A loftier eulogy on Taney is given by Prof. Wm. E. Mikell of the Uni- 
versity of Pennsylvania, 4 Great Am. Lawyers 77. "If Marshall saved the 
Federal Government from dying of inanition, Taney saved the States from 
death by absorption. It is largely to the genius of the two great Chief Justices 
that an indestructible union of indestructible States is due. Who in this work 
performed the greater service is a question that will be answered, according to 
the political views of the person to whom it is propounded. That Taney worked 
nearer the understanding of the Fathers can not be doubted by the student of 
constitutional history." Such excessive claims are unfortunate. 

18 11 Peters 1. Marlott v. Silk. No dissenting opinion filed. The case 
dealt with a compact between Pennsylvania and Virginia. 

19 U. S. v. Skiddy (the Ship Garonne) 11 Peters 73. 

20 Story, McLean, Thompson, and Baldwin. 
21 15 Atlantic Monthly 154. 

22 The Court decided that, under the Act of 1818, a forfeiture of a slave did 
not occur, in the case of the return of a colored woman to Louisiana from 
France, whither she had gone from Louisiana with her mistress. 



192 ROGER BROOKE TANEY 

Taney's defender says of this decision, and of those 
like it, with considerable correctness: 23 

As a judge, pledged to administer the law, he conceived that 
his duty was not to seek technicalities, either to uphold or extend, 
restrict or prohibit slavery; but, recognizing its legality and limi- 
tations under the Constitution, his duty was to find, in the inten- 
tion of the makers of that instrument and of Congress, when they 
acted lawfully under it, the law of the land and to declare that law, 
without regard to the political aspects of the question. 

It is a good rule and one, alas! which Taney broke, at 
least upon one memorable occasion. 

The three important constitutional cases decided by 
the Court at the January term, contrary to the views 
of Marshall and Story, were the Mayor of New York v. 
Miln, 24 Briscoe v. Bank of Kentucky 25 and Charles 
River Bridge Company, v. Warren Bridge Company. 26 
These cases had been pending, when Taney came upon 
the Bench, and he wrote the opinion in the last of them. 27 

In the case of the Mayor of New York v. Miln, a 
law of the State of New York was upheld under the 
police power, which required the master of a ship, 
under penalty, to report in writing concerning the 
passengers he brought, within twenty-four hours of the 
vessel's arrival. The argument against the law was 
that the Statute was unconstitutional, 28 as conflicting 
with the commercial power of Congress. The Court's 
opinion was that persons are not the subjects of com- 

13 Mikell in 4 Great Am. Lawyers 105. 
•* 11 Peters 102. 
15 11 Peters 257. 
S6 11 Peters 420. 

47 Barbour wrote the opinion in N. Y. v. Miln and McLean that in the 
Kentucky Case. 

28 Following the decisions in Gibbons v. Ogden and Brown v. Baltimore. 



ROGER BROOKE TANEY 193 

merce, as they are not imported goods, so that the 
"reason founded upon the construction of power given 
to Congress to regulate commerce and prohibiting the 
States from imposing a duty does not apply." 29 

In later years in the Passenger cases 30 a curious 
difference of memory as to this opinion between Taney 
and Wayne was revealed. Taney said that the opinion 
was that of the majority of the Court. Barbour read it, 
Thompson's opinion agreed with it and Baldwin in an 
opinion delivered four years later approved of it. 
Wayne said that only Barbour and Taney favored it 
as a whole and that the opinion had not at any time the 
concurrence of a majority of the Court, except in so 
far as it stated that so much of the act as required the 
captain of a vessel to report his passengers was a police 
regulation and therefore was not a violation of the power 
of Congress to regulate commerce. Carson remarks that 
"each, with the most perfect sincerity, and fullness of 
detail states what he recalls of the discussion and of 
the points determined and each with perfect courtesy, 
but with characteristic firmness, contradicts the other 
and labels the statement of his opponent as a dangerous 
error." 

Taney here, as ever, continued his advocacy of a 
narrow construction of the commerce clause, to which 
he had committed himself while counsel in Brown v. 
Baltimore. 

In the second case, Briscoe v. Bank of Common- 
wealth of Kentucky, the Court upheld the constitu- 
tionality of a Statute, allowing a bank, in which a 

29 Justice Thompson argued for the validity of the State law, ab silentio 
Congress. The doctrine of the case was controverted by Smith v. Turner, 
7 Howard 283, in 1849, and the Court reviewed the question in Curley v. Board 
of Post Wardens, 12 Howard 300 in 1851. 

30 7 Howard 429, 484, vide Carson's Supreme Court 333. 



194 ROGER BROOKE TANEY 

State held the stock, to issue paper money and held 
that such a grant did not contravene the prohibition in 
the National Constitution against a State's emitting 
bills of credit. 31 

The third case is more important for our present 
purpose. It not only involved the constitutionality of 
a State law; but also concerned the famous Dartmouth 
College Case, in which it had been held that a charter 
constituted a contract, the obligation of which would be 
impaired by any change in the charter without consent 
of the Corporation chartered. Such impairment of a 
contract was forbidden by the Constitution of the 
United States, and Webster, who had won the Dart- 
mouth College Case, was here defeated for the first 
time in a Constitutional question. The gist of the 
case was whether the incidental advantages conferred 
by a charter could be essentially diminished, or taken 
away, by a subsequent charter to another corporation. 
Those who had followed Taney's career and had read 
his opinion in the case of the Camden and Amboy Rail- 
road 32 could have had no doubt as to how he would 
vote in the decision of this question. The opinion is 
his first important one and is a fine piece of work, 
characterized in Carson's words 33 by the "broadest 
statesmanship." Taney's ardent admirer, George W. 
Biddle, wrote of the decision : 34 

Unless the luxuriant growth, the result of the decision in 4 
Wheaton, 35 had been lopped and cut away by the somewhat tren- 

31 See D. R. Dewey's "Financial History of United States," p. 261. This 
case conflicted with Craig v. Missouri, 4 Peters 410 (1830). 

32 See Chapter VI. 

38 Hist. Sup. Ct. p. 292. 

34 Constitutional History of U. S. as seen in the Development of Am. Law. 
Lectures before the Political Science Association of the University of Michigan 
133. 

36 The Dartmouth College Case. 



ROGER BROOKE TANEY 195 

chant reasoning of the Chief Justice, the whole field of legislation 
would have been choked and rendered useless in time to come for 
the production of any laws that would have met the needs of the 
increasing and highly developed energies of a steadily advancing 
community. 36 

Tyler 37 wrote of the decision, as "enforced with the 
most convincing reasoning, founded on sound legal 
doctrine and expressed in the most felicitous diction," 
and as a decision "most auspicious for the country," 
since "it left the States free to push forward the great 
improvements by which the earth had been subdued 
to the dominion of man." 

Story had considered the argument of the case "com- 
plete and fine" 38 but, when the opinion was rendered, 
he wrote his wife: 39 that he was sorry for the decision 
by a divided court and believed that "a case of grosser 
injustice, or more oppressive legislation, never existed. 
I feel humiliated, as I think every one here is by the 
act which has been confirmed." Webster, of course, 
commended Story's dissenting opinion, but Chancellor 
James Kent was also just as earnest in condemning the 
decision, when he "reperused" the case, with "increased 
disgust." The Briscoe case appeared to him "quite as 
alarming and distressing" and he, despairingly, wrote: 

36 In unmeasured panegyric, Prof. Mikell wrote, in 4 Great Am. Lawyers, 
p. 128: "The greatest expounder of the Constitution that ever sat on the 
Supreme Court Bench became the truest expounder of the intentions of those 
who framed that great instrument. In was his glory that, with a sane mind, 
untroubled by the criticism of partisans, sincere or otherwise, he interpreted 
the Constitution, or lent the weight of his influence to its interpretation, so as 
to reserve unimpaired to the States the rights reserved to them and, at the same 
time, to give full effect to all the powers granted by the States to the Federal 
government." 

37 Vide, pp. 274-279; this quotation is from p. 277. 

38 Story's Story II, 265. 
33 Story's Story II, 268. 



196 ROGER BROOKE TANEY 

"I have lost my confidence and hopes in the constitu- 
tional guardianship and protection of the Supreme 
Court." 40 

After returning to Massachusetts, Story found no 
cause to change his mind ; but wrote thus to his colleague, 
Justice McLean, 41 upon May 10: 

The opinion delivered by the Chief Justice has not been deemed 
satisfactory and, indeed, I think I may say, that a great majority 
of our ablest lawyers are against the decisions of the Court, and 
those who think otherwise are not content with the views of the 

Chief Justice There will not, I fear, ever, in our day, 

be any case in which a law of a State, or of Congress, will be de- 
clared unconstitutional; for the old constitutional doctrines are 
fast fading away and a change has come over the public mind, 
from which I augur little good. 

It is a curious commentary upon this prediction that, 
after near twenty years of calm acquiescence with the 
decisions of the Supreme Court, great turmoil arose 
and disapproval of the Court's position was especially 
voiced in New England, when a Federal Statute — the 
Missouri Compromise — was declared unconstitutional 
in the Dred Scott Case. Thayer 42 states that Green- 
leaf, who was counsel for the defendants — the Warren 
Bridge Company — suffered reproach from a highly 
excited community. 43 

40 Story's Story II, 269, 270. 

41 Story's Story II, 272. 

42 Select Cases on Constitutional Law, 1641. 

43 He filed in the Harvard College Library a volume, containing minutes of 
the various arguments, etc., and included in the book a newspaper clipping 
containing Taney's opinion, in 1832, on the Trenton and New Brunswick 
Turnpike Company in New Jersey. The volume also contains an opinion by 
Kent, in which Webster concurred, stating that Taney's opinion in the 
above matter had been read, but discussion was waived "upon that point, as 
not necessary in the view which I take of the case. I certainly think the 
legislative stipulation ought to be sternly construed, as one that may be exceed- 
ingly inconvenient for the public welfare." 



ROGER BROOKE TANEY 197 

A writer in New York Review** for April, 1838, thought 
that these three constitutional cases showed an "altered 
tone and narrower spirit," than was exhibited in Mar- 
shall's time. Five of the justices — a majority of the 
Court were Jackson's appointees and the change in 
the Court was "so great and ominous that a gathering 
gloom is cast over the future." The writer's objections 
to the Charles River Bridge case were: (1) "what is 
most damning and most heretical in this opinion is the 
new fangled doctrine that the contracts of the State 
are to be construed strictly as against the grantee and 
that nothing can be raised by implication;" 45 (2) that 
there was a "surrender to the avidity and encroach- 
ments of the State Sovereignties of the great and essen- 
tial — and exclusively National — power in Congress, to 
regulate commerce," 46 and that (3) a "salutary injunc- 
tion in the constitution is so reduced, by strict and 
subtle constructions, as to amount only to an empty 
sound" — and indeed all ground gained under Marshall 
may be lost. 47 

Let us now examine the circumstances of this im- 
portant case and the grounds of Taney's opinion. 47 
The issues of the decision, 48 involved questions of the 
"gravest character," to the answer of which the Court 
had given "most anxious and deliberate consideration." 
The right had a large value, many persons were affected 
as to "their pecuniary interests," and the determina- 
tions "as to the powers of the States, in relation to 
corporations they have chartered, are pregnant with 

44 2 N. Y. Rev. 372. 

45 Page 389. 

46 Page 397. 

47 Page 399. 

48 11 Peters 420 — McLean, Story, and Thompson dissented, pp. 536 & ff, 



198 ROGER BROOKE TANEY 

important consequences" both to individuals and to 
communities. The Court felt that it "must preserve 
the rights of property and carefully abstain from any 
encroachment on the rights reserved to the States." 

As far back as 1650, the General Court of Massa- 
chusetts granted Harvard College, the right to dispose of 
a ferry from Charlestown to Boston. In 1785, in re- 
sponse to a petition, there was chartered the Charles 
River Bridge Company to build a bridge over the 
Charles River, where the ferry had been kept. The 
Charter was granted for forty years from the opening 
of the bridge and the company was directed to pay 
£200 yearly to Harvard College. At the end of the 
forty years, except for a reasonable compensation to 
Harvard College, the bridge should become the property 
of the Commonwealth. The bridge was opened in 
1786 and, in 1792, the General Court extended the life 
of the Corporation for ten years from the termination 
of the forty years previously granted. Within the 
term of the corporation's life, in 1828, the General 
Court incorporated the Proprietors of the Warren 
Bridge, to build another bridge over the Charles River 
which second bridge was located 16 rods jom the old 
one at the Charlestown end and 50 rods away at the 
Boston end. This Warren Bridge, by the terms of 
the charter, was to be surrendered to the State, as soon 
as the expenses of building it had been met from the 
proceeds of the toll taken thereon and, in any case, 
not more than 6 years from the time when toll began 
to be taken. 

The Charles River Company then asked for an in- 
junction against the Warren Bridge Company and, in 
its original bill, alleged the impairment of the obligation 
of a contract by the charter which had just been granted. 



ROGER BROOKE TANEY 199 

A supplemental bill stated that the new bridge had 
been completed and had resulted in an actual loss of 
toll at the old bridge. 

In 1829, the Massachusetts court decided that there 
had been no impairment of the obligation of a contract 
and, on a writ of error, the upper court was equally- 
divided, so the original decision stood. 49 In the period 
between this decision and the decision of the Supreme 
Court, the Warren Bridge Proprietors had received 
sufficient toll to reimburse them and the bridge became 
the property of the Commonwealth, which abolished 
the tolls on it and thus practically destroyed the value 
of the franchise of the Charles River Bridge. 50 The 
plaintiffs alleged that the right of Harvard to a return 
from the tolls on the bridge was exclusive and, independ- 
ently of the ferry right, the acts of the General Court 
necessarily implied that the Legislature would not 
authorize another bridge, whereby the old franchise 
was made of no value. They claimed that both the 
ferry and charter grants were contracts on the part of 
Massachusetts, and that these were impaired in their 
obligation by the Warren Bridge Charter. The Su- 
preme Court held that a State law might be retrospec- 
tive and violate vested rights and yet not be set aside, as 
contrary to the United States Constitution. The 
plaintiff must show "that the State had entered into 
a contract with them, or those under whom they claim, 
not to establish a free bridge at the place where the 

4 * The case is reported in 6 Pickering 376 and 7 Pickering 344 (1830). 

60 Some of these latter facts, if material, ought have been brought in by 
supplemental bill, in the view of the Court; but the opinion treated the case, 
as if they were regularly before the tribunal, as those facts would not, "in any 
degree, influence the decision" and, as they were conceded to be true, and the 
case had been argued on that ground, and both parties desired a final end of 
the long controversy, and as it was important that the principles on which the 
case was decided should not be misunderstood. 



200 ROGER BROOKE TANEY 

Warren Bridge is erected." It was almost impossible, 
of course, to do this. Taney denied that it had been 
shown that any exclusive privileges granted to Harvard 
College had been transferred to the Charles River Com- 
pany and were still in existence. The payment of 
£200 per annum to the College had been claimed to 
give the proprietors of the bridge an equitable claim 
to be treated as assignees of the College's interest and, 
by substitution, to be vested with its rights, but Taney 
held that the answer to this claim was obvious — the 
sum to be paid from the tolls was to be collected from 
the public and it was intended that the public bear this 
expense. The agreement to pay that sum gave, there- 
fore, no equitable right to the plaintiffs to be regarded 
as assignees of the College and, certainly, furnished no 
foundation for presuming a conveyance. 

As the proprietors of the Charles River Bridge were 
neither legal, nor equitable assignees of the College, 
the ferry franchise could not be involved in the case. 
The Harvard College privilege could not extend the 
privileges of the Bridge Company. There might well 
have been a change of policy in the mind of the General 
Court. The franchises are different in nature and were 
established by separate grants, which had no words to 
connect the privileges of the one grant with those of 
the other. "The charter to the Bridge is a written in- 
strument, which must speak for itself and be inter- 
preted by its own terms. The charter is a grant by the 
Public to a private corporation and in a matter where 
the public interest is concerned." Following English 
precedents, the Court must construe such grants 
strictly, giving no enlarged privileges by implication. 
The fact that the power of the Commonwealth had been 
so exercised as to destroy the value of the franchise 
could not affect the principle. 



ROGER BROOKE TANEY 201 

The object and end of all government is to promote the happiness 
and prosperity of the community by which it is established, and it 
can never be assumed that the government intended to diminish 
its power of accomplishing the end for which it was created. And, 
in a country like ours, free, active, and enterprising, continually 
advancing in numbers and wealth, new channels of communica- 
tion are daily found necessary, both for travel and trade, and are 
essential to the comfort, convenience, and prosperity of the people. 
A State ought never to be presumed to surrender this power; 
because, like the taxing power, the whole community have an 
interest in preserving it undiminished The con- 
tinued existence of a government would be of no great value, if, 
by implications and presumptions, it was disarmed of the powers 
necessary to accomplish the ends of its creation and the functions 
it was designed to perform, were transferred to the hands of 
privileged corporations. 51 

The Court held that there was no exclusive privilege 
given the old bridge company over the waters of the 
Charles River above or below their bridge. They had 
no right to erect another bridge themselves, nor to 
prevent other persons from erecting one. No engage- 
ment had been made by Massachusetts that another 
bridge should not be erected. No undertaking had 
been given not to sanction competition, nor to prohibit 
improvements, which might diminish the amount of 
the old company's income. If the plaintiff were en- 
titled to any of those rights, it was, by implication, 
from the nature of the grant, and not from its words. 
The Warren Bridge neither interrupted the passage over 
the Charles River Bridge, nor made the way to, or 
from, it less convenient. "The gist of the complaint" 
was that, while "all franchises and rights of property 
enumerated in the charter .... remain un- 

M We have here a distant echo of the controversy with the United States 
Bank. 



202 ROGER BROOKE TANEY 

impaired, .... its income is destroyed by the 
Warren Bridge." The Court replied that the charter 
contained no contract in words made by the Common- 
wealth not to diminish the amount of tolls through 
competition and no implication could be allowed. 
"The whole community are interested in this inquiry 
and they have a right to require that the power of 
promoting their comfort and convenience and advancing 
the public prosperity by providing safe, convenient, 
and cheap ways for the transportation of produce and 
purposes of travel, shall not be construed to have been 
surrendered, or diminished, by the State, unless it 
shall appear, by plain words, that it was intended to 
be done." The act of 1792, which extended the term 
of the charter of the Charles River Bridge Company, 
also incorporated another company to build a bridge, 
the West Boston Bridge, over that River at a distance 
of between one and two miles from the old bridge and 
the reason for the extension of the charter was stated 
to be that the erection of another bridge may diminish 
the emoluments of the Charles River Bridge Company, 
whose undertaking was "a work of hazard" and should 
be encouraged. From this act, Taney drew the con- 
clusion that the General Court, within seven years of 
the grant of the original charter, did not suppose that it 
had deprived itself of the power to alter it and, in the 
amending act, was careful to use language which would 
"exclude the inference that the extension was made, on 
the ground of compromise, or as compensation for 
rights impaired." The plaintiff, holding a franchise 
under the law of 1792, can not add to the privileges 
expressed in the charter an implied agreement, in 
direct conflict with a portion of that law. Taney con- 
sidered that it would be hard to prove such a claim 



ROGER BROOKE TANEY 203 

against an individual, still more against the State. 
"It would, indeed, be a strong exertion of judicial 
power," Taney held, "to raise, by a sort of judicial 
coercion, an implied contract and infer it from the 
nature of the very instrument, in which the legislature 
appears to have taken pains to use words which dis- 
avow and repudiate any intention on the part of the 
State to make such a contract." The practice of 
States in chartering railroads and turnpike companies 
was against the plaintiffs' contention, which had not 
previously been urged in any similar case. If the con- 
tention were granted, where could the line be drawn, 
Taney inquired, in such an argumentum ab inconve- 
nienti? Old turnpike companies would at once bring 
suits against railroads, "an arbitrary rule of distance 
would have to be fixed and the States would be unable to 
avail themselves of the lights of modern science." 
Principles which lead to such bad results should not be 
sanctioned by the Court. 

Such was the Court's decision and Taney's opinion 
expounding it. The general opinion of the legal pro- 
fession today is that the decision was a wise and just 
one and that Taney's opinion worthily stated the 
grounds for that decision and showed that, when he had 
been placed as Chief Justice, the high position had been 
given to an able jurist, who could clearly, wisely, and 
sententiously deliver the law, as interpreted by the 
august tribunal. 

Taney rendered only two other opinions at the 1837 
term of Court. Both of these concerned the jurisdic- 
tion of the courts: in one of them 52 he held that there 
was no Federal jurisdiction on the question as to whether 
a person claiming land in Pennsylvania on an invalid 

"McBride v. Hogg 11 Peters 171. 



204 ROGER BROOKE TANEY 

deed, given on a sale for taxes under United States law, 
had the right to redeem the land; and, in the other, he 
refused to grant a mandamus, since a prima facie case 
had not been made. 53 

The year 1838, saw a new phenomenon, the Chief 
Justice disagreeing with the majority of the Court 
upon a Constitutional question, in the boundary dispute 
between Rhode Island and Massachusetts. 54 He con- 
sidered the powers given the courts by the Constitu- 
tion as judicial only, not extending to political subjects 
and maintained that Rhode Island sought to recover 
not land, but "sovereignty and jurisdiction," which 
are not matters of property, but are political rights 
and, therefore, are not subjects of judicial cognizance. 
It is fortunate that the Court did not follow Taney 
here, for to have done so would have caused the power 
to determine controversies between the States to lose 
much of its value. 55 

In another case of this year, Taney delivered the 
Court's opinion and held that, when there was a dis- 
pute as to land grants made by Spain, between the 
Mississippi and the Perdido River, the determination 
of the boundary between West Florida and Louisiana 
was a political question. 56 

M Postmaster General v. Trigg 11 Peters 173. In Livingston v. Story, 11 
Peters 351, Taney did not sit, as he had been counsel in the case, before his 
elevation to the bench. 

54 He filed an opinion, in accordance with the practice in constitutional 
cases, but stated that he would give his full opinion after the final hearing of 
the case. 12 Peters 657, 752. The case had been continued in the preceding 
year. 11 Peters 226. The Court refused to dismiss the suit for want of 
jurisdiction. 

55 See Tyler, p. 279. The case was finally decided in 1846. 4 Howard 591. 

56 Garcia v. Lee, 12 Peters 511. In Strother v. Lucas 12 Peters 410 Taney 
did not sit, having been counsel in the case. 



ROGER BROOKE TANEY 205 

About this time, we find the beginning of that long 
series of opinions upon questions of practice and pro- 
cedure, which were generally left to Taney's care, 
while he was upon the bench. These opinions are, fre- 
quently, short and, while they have no dramatic interest 
nor constitutional importance, yet they constitute an 
important service rendered, in standardizing the ad- 
jective side of the law, as practiced in the Supreme 
Court. 57 

In a case where Maryland law had to be construed, 
Taney delivered the opinion of the Court 58 and, in 
another one, he concurred in the decision, but not in 
the reasoning. 59 

Taney dissented in 1838, in the case of Kendall v. 
Stokes 60 in which the Court held that a mandamus 
would issue to command the Postmaster General to 
perform a ministerial act. Tyler praises Taney's dis- 
sent, 61 as showing "perfect knowledge of the remedies 
furnished by the law of England, in all their changed 
adaptations, from age to age." It is interesting to 

"These cases are: (l) Benton v. Woolsey, 12 Peters 27. A valid bill of 
information may be brought in the name of the United States District Attorney, 
but the correct practice is to bring suit in the name of the United States; (2) Brad- 
street v. Thomas 12 Peters 59. Averment of Citizenship. (3) McNielv. Hol- 
brook 12 Peters 84. The Statutes of States which prescribe rules of evidence 
in civil cases are included under section 34 of the Judiciary Act; (4) West v. 
Brachear, 12 Peters 101, Opinion of 2 paragraphs, a dismissal of an appeal; 
(5) Wilson v. Life Ins. Co. 12 Peters 140. A writ of error naming the plaintiffs 
as heirs of Wilson is bad and defects may be taken advantage of until final 
judgment; (6) Sarchetv.U.S. 12 Peters 143, a writ of error and appeal; (7) Story 
v. Livingston 12 Peters 340, The Court below refused correctly to put on the 
record facts showing that the suit was abated before appeal. (8) Poultney v. 
LaFayette City, 12 Peters 473, Rules of Court. 

88 Steele v. Carroll 12 Peters 201. Question of mortgage and dower. 

69 Toland v. Sprague 12 Peters 336. Court held, contrary to Taney's view, 
that tne Circuit Court could not attach the property of a foreign debtor. 

60 12 Peters 524, 626. 

91 Page 305. 



206 ROGER BROOKE TANEY 

notice that, even in questions of practice, Taney did 
not dominate the Court always. He had wished to 
confine the decision to a narrow point and expressed 
his surprise that "so many grave questions of consti- 
tutional power have been introduced and so earnestly 
debated." The position of Postmaster General was 
created by Congress, which may limit its powers and 
regulate the procedure. Taney held that Congress 
had not conferred jurisdiction in this matter on the 
Circuit Court of the District of Columbia and that the 
controversy returned solely on the construction of an 
act of Congress. In order to confirm his position he 
made an elaborate study of the history of the writ of 
mandamus, a high jurisdiction in the Prerogative and 
General Courts of Maryland, whence the City of Wash- 
ington in the District of Columbia had been taken. 

After the announcement of the decision of the Court, 
Taney was considerably criticised in the newspapers, 
as having been "influenced by party feeling to pro- 
tect General Jackson's Postmaster General." Mr. 
Richard Peters, the Court Reporter, wrote Taney 
concerning these comments and Taney replied, on 
March 27, 62 

The daily press, from the nature of things, can never be the 
the "field of fame" for judges; and I am so sensible that it is the 
last place that we should voluntarily select for our discussions, 
that, on more occasions than one, when I have seen my opinions 
at Circuit incorrectly stated, I have declined publishing the opinion 
really delivered, because I did not think it proper for a Judge of 
the Supreme Court to go into the newspapers to discuss legal 
questions. 

62 Tyler, p. 307. Peters had proposed to dedicate his digest to the Chief 
Justice and Taney esteemed it "no small honor" to have his name associated 
with the book, but should "chiefly value it, as the evidence of the friendship 
and kind feelings we have cherished for each other." 



ROGER BROOKE TANEY 207 

Biddle 63 considered that Taney's "opinion exhibits, 
in a high degree, the ability of the Chief Justice to 
present an argument upon a technical point, with the 
nicest precision of reasoning, the closest application of 
the rules for the exposition of Statutes, and the fullest 
and fairest examination of the grounds upon which the 
opposing argument is based. " 

He had originally intended merely to concur with a 
dissenting opinion written by Judge Baldwin, but the 
publications led him to change his mind and he wrote a 
separate dissent, which he would send Peters, "as 
soon as it is brought within proper dimensions." He 
found the opinion "longer than I like and I retain it 
for the purpose of condensing the argument." Taney 
was rarely prolix and closed his letter thus: "You 
know my settled dislike to a long opinion, when justice 
to the case can be done by a short one. Yet I fear I 
sin in unnecessary length, as often as any of my brethren." 

In 1839, Taney filed the Court's opinion in one quite 
important case — the Bank of Augusta v. Earle 64 The 
case had come up from Alabama, and was one of assump- 
sit on a bill of exchange 65 but these corporation cases 
(for two other cases depended on the same principle) 
took their chief value because in them was involved an 
important constitutional question in reference to the 
States: viz., are the corporations, created by the 
Statutes of one State, permitted by comity to make 
contracts in other States and sue in their tribunals. 
The particular question involved in the case was this — 
may a bank incorporated by Georgia with power to 
purchase bills of exchange, purchase them in Alabama, 

63 Const. Hist, of the U. S. as Seen in the Development of Am. Law p. 137. 

M 13 Peters 519. Tyler, p. 281. 

66 Vandegraff and Webster were the attorneys for the parties. 



208 ROGER BROOKE TANEY 

or is such purchase void? Many such contracts had 
been made, so that the question was of a "very grave 
character," from the amount of money involved. 
"Whenever a corporation," in Taney's words, 66 "makes 
a contract, it is a contract of the legal entity of the 
artificial being created by the charter and not the con- 
tract of the individual members," so that the acts per- 
formed must be such as are authorized by the charter 
and must be made by the officers and in the manner 
authorized thereby. If the law creating a corporation 
does not give it the right to exercise powers beyond the 
limits of the State chartering it, the contracts made 
outside that State's jurisdiction are void, but here 
Georgia "clothed the corporation with the right to 
make contracts" out of the State, in so far as Georgia 
could do it. The purchase of the bill of exchange was, 
therefore, the exercise of power possessed by the Bank 
under its charter. The question then came before the 
Court: Can the laws of a State have an extra terri- 
torial operation, or can a corporation, a creature of the 
laws of a State, have existence beyond the limits within 
which that law operates? Taney thus answered the 
question: 

It is very true that a corporation can have no legal existence 
outside of the boundaries of the sovereignty by which it is created. 

It must dwell in the place of its creation and cannot 

migrate to another sovereignty Yet it does not, by 

any means, follow that its existence will not be recognized in 
other states, and residence in one State creates no insuperable 

objection of its power of contracting in another 

Natural persons, through the intervention of agents, are con- 
tinually making contracts in countries where they do not reside 
and where they are not personally present when the contract is 

66 Page 587. 



ROGER BROOKE TANEY 209 

made, and nobody has ever doubted the validity of these agree- 
ments. And what greater objection can there be to the capacity 
of an artificial person by its agents to make a contract within the 
scope of its limited powers, in a sovereignty in which it does not 
reside, provided such contracts are permitted to be made by them 
by the laws of the place? 

It is sufficient that its existence as an artificial person in the 
State of its creation is acknowledged and recognized by the law 
of the nation where the dealing takes place and that it is permitted 
by the laws of that place to exercise there the powers with which 
it is endowed. 

He then elaborately discussed the question whether 
corporations of one State are permitted to make con- 
tracts in another by the comity of nations and by the 
comity existing between the States and decided that 
"comity is no impeachment of sovereignty, but is a 
voluntary act of the nation by which it is offered. But 
it contributes so largely to promote justice between 
individuals and to produce a friendly intercourse 
between the sovereignties to which they belong, that 
courts of justice have continually acted upon it, as a 
part of the voluntary law of nations." No sufficient 
reason is found for excluding foreign corporations from 
such comity, "when they are not contrary to the 
known policy of the State, or injurious to its institu- 
tions." The State merely admits the existence of an 
artificial person and recognizes the law of the foreign 
State. States in the Union here stand upon not quite 
the same footing as foreign countries. "The intimate 
Union of these States, as members of the same political 
family; the deep and vital interests which bind them 
so closely together should lead us, in the absence of 
proof to the contrary, to presume a greater degree of 
comity and friendship and kindness towards one another 



210 ROGER BROOKE TANEY 

than we should be authorized to presume between 
foreign nations." These "sovereign States," in their 
history and in "the events which are daily occurring, 
furnish the strongest evidence that they have adopted 
towards each other the laws of comity to their fullest 
extent." If a corporation may sue in the courts of a 
state, there is no reason why it may not make a con- 
tract. Both comity of contract and comity of suit 
are part of the law of the State. Pennsylvania prohib- 
its the making of certain contracts by foreign corpora- 
tions — a statute which shows that any other such con- 
tracts are legal, and the Maryland law provides a way 
to enforce such contracts. The Alabama law is not 
against the suit of a foreign corporation and the State 
itself is not a party to the suit. The contracts were 
made in good faith, a fact which shows what was the 
generally received opinion in Alabama, at the time of 
making the contract. 

This strong opinion showed Taney's Federal opinions 
and has been a valuable precedent for many other cases, 
furnishing correct doctrine to subsequent generations 
of judges. Biddle 67 wrote of it as a "compact, well- 
reasoned opinion, .... remarkable in its statement 
of the law, as well in what it affirms of the arguments 
of the very eminent counsel 68 who represented the 
different plaintiffs in error." 

Story on April 19, 1839, wrote Taney from Cambridge, 
Mass., 69 "your opinion in the corporation cases has 
given very general satisfaction to the public, and, I 
hope you will allow me to say, that, I think it does 
great honor to yourself as well as to the Court." 

67 Const. Hist., p. 141. 

68 Ogden, Sergeant and Webster. 

69 Tyler, p. 288. Tyler speaks of the extensive correspondence between 
Story and Taney, which I have not found. 



ROGER BROOKE TANEY 211 

At the same term of Court, Taney filed an opinion 
in an action of ejectment, 70 in which the date of the 
cession of the District of Columbia to the United States 
was involved and in which he said, in reference to the 
manner of signing deeds, "if Maryland Courts had 
given a contrary construction, we should, of course, 
feel it to be our duty to follow their decision." 71 Most 
of his other opinions, during that year, were upon 
points of precedure. 72 

In 1840, Taney's chief opinion was that in the case 
of Holmes v. Jennison; 73 a case in which there was so 
divided a court that no official opinion was filed. Taney 
joined with Story, McLean and Wayne in the majority 
and the very list of names shows that the decision was 
no States' Rights one. Buchanan, in a speech delivered 
in Congress on May 9, 1842, 74 attacked Taney's opinion 
in this case, saying: "I have always entertained the 
highest respect for the present distinguished Chief 
Justice of the United States, but .... some 
portions of his opinion 75 in this case are latitudinous and 
centralizing beyond anything I have ever read in any 
other judicial decision." Story, on the other hand 76 
wrote in May, 1840, to Mr. Peters, the Reporter of the 

70 Van Ness v. Bank of U. S. 13 Peters 17. 

71 Page 21. 

72 (1) 13 Peters 23 R. I. v. Mass. The Court will not apply to suits between 
States the same rules as to an answer which govern individuals, (2) 13 Peters 
153 Reed's lessee v. Marsh New Trial, (3) 13 Peters 225 Ex parte Hennen, A judge 
of the Supreme Court has no power in the August term to allow a rule to show 
cause why a mandamus should not issue. The only other opinion was in 
Andrews v. Pond 13 Peters 42, a case involving protested bills, charge for 
exchange, and usurious contracts. 

73 14 Peters 540. 

74 Works V. 238. 

75 Especially pp. 569-570. 

76 Tyler, p. 290. 



212 ROGER BROOKE TANEY 

Supreme Court: "In my judgment the opinion of the 
Chief Justice in the Habeas Corpus case is a masterly 
one and does his sound judgment and discrimination 
very great credit. I think it will (as it ought) elevate 
his judicial reputation. I entirely concurred in that 
opinion with all my heart ; and was surprised that it was 
not unanimously adopted." 77 

The circumstances of the case were these: Holmes, 
a Canadian, was accused of a murder committed in the 
Quebec District of Canada and the Canadian authori- 
ties requested the Governor of Vermont to order his 
delivery to them. The Governor issued orders to the 
Sheriff to do this and the Vermont Court upheld him, 
when a writ of habeas corpus was sued out by Holmes, 
in order to resist extradition. The question which 
came before the Supreme Court for final judgment was 
whether this action was in accordance with the United 
States Constitution and the Court decided that it had 
no jurisdiction, upon a writ of error, to revise the deci- 
sion of a State Court on a writ of Habeas Corpus which 
remands a prisoner to the custody of a sheriff under 
warrant of the Governor of a State to be delivered to 
the authorities of a foreign country, there to be tried 
for crime. The Court's inquiry involved the relative 
powers of the Federal and State Governments. Taney's 
opinion was that the power to surrender would not 
differ whether the person arrested were a foreigner, or a 
citizen of the United States. "If this power remains 
with the States, then every State in the Union must 
determine for itself the principles upon which they 
will exercise it and there will be no restriction upon 
the power, but the discretion and good feeling of each 

77 Peters quoted this letter to Taney, who responded that he was "not a 
little gratified" at Story's judgment and that his praise was "worth receiving." 



ROGER BROOKE TANEY 213 

particular State." The power is a part of the foreign 
intercourse of this country and that has undoubtedly 
been referred to the Federal Government. It is an 
exclusive one, for it is forbidden to the States 78 to enter 
into any agreement with foreign States and there has 
clearly been an agreement made, between Vermont and 
Canada, to deliver Holmes. Furthermore this power is 
incompatible with powers conferred on the Federal 
Government. "In expounding the Constitution of the 
United States, every word must have its due force and 
appropriate meaning; for it is evident, from the whole 
instrument, that no word was unnecessarily used, or 
needlessly added." This is good Federalist doctrine 
and Taney affirmed that "the framers of the Constitu- 
tion, manifestly, believed that any intercourse between 
a State and foreign nation was dangerous to the Union; 
that it would open a door of which foreign powers would 
avail themselves to obtain influence in the separate 
States." If the "power remain in the States, the 
grant to the general government is nugatory and vain." 
Taney maintained that "it is not the mere power to 
deliver up fugitives from other nations" on the demand 
of these nations, that was here involved; but rather 
the right to "determine whether or not they ought to 
be delivered and to make that decision effectual." 
Different States might decide the question differently, 
The power was not a part of the police power and was 
of no advantage to the States. Most people today 
would agree to Taney's assertion that it was "one of the 
main objects of the Constitution, so far as regarded our 
foreign relations, to make one people and one nation, 
and to cut off all communications between foreign 
governments and the several State authorities." The 

78 Const. Art. 1, Sec. 10, clauses 1 & 2. 



214 ROGER BROOKE TANEY 

majority of the Court would not adopt this view and 
strangely enough, the man who wrote it has been called 
an advocate of States' Rights. 

Taney has been accused of being a friend of slavery, but 
he did not show such leaning in the opinion in the case 
of the United States v. Morris, 79 in which a vessel had 
been seized on a voyage from Cuba to Africa. He held 
that, to constitute offences denounced in the act of 
1800 aginst the foreign slave trade, it was not necessary 
that there "should be an actual transportation of 
slaves" in a vessel. There was sufficient evidence, if a 
vessel was shown to have been bound for the coast of 
Africa, "for the purpose of taking slaves on board to be 
transported to some foreign country, and the defendant, 
having knowledge of the business and being an American 
citizen, was on board voluntarily." 

In another case dealing with external matters, Taney 
held 80 that the decision of the Board upon French 
treaty claims, under the Act of 1831, as to the seizure of 
a vessel's cargo in 1809 and the rights of conflicting 
claimants, was not conclusive, but that the question of 
the respective title was fully open to be adjudicated by 
the Courts. Foreign trade in war time was also in- 
volved in the case of a vessel seized while sailing from 
Buenos Ayres to Brazil, 81 concerning which seizure 
Taney was of opinion that as the covering of belligerent 
property by neutral papers was not so illegal as to 
prevent the enforcement of contracts based on that 
property, consequently, "money recovered from a 
foreign government, as compensation for the capture of 

79 14 Peters 464. 

80 Frevall v. Bache 14 Peters 95. 

81 De Valengin's Administrators v. Duffy, 14 Peters 282. 



ROGER BROOKE TANEY 215 

property so covered," was not so tainted, but that the 
true owner could recover from the ostensible owner. 82 
Questions of jurisdiction, of course, fell to Taney and 
he held that a mandamus will not issue to compel the 
Secretary of the Navy to perform a discretionary act 
for the benefit of a commodore's widow. "The inter- 
ferences of the courts 83 with the performance of the 
ordinary duties of the executive departments of the 
government would be productive of nothing but mis- 
chief." 84 In reference to the judgments of the State 
Courts, Taney held that the Supreme Court could not 85 
examine the question as to whether one decree of a 
State Court is in collision with another decree of the 
same court in a second suit concerning the same subject 
matter. 86 If the decision of a State Court 87 is against 
the validity of a State law which was alleged to con- 
travene the Federal Constitution, the Supreme Court 
had no jurisdiction; for the power given it "was in- 
tended to protect the general government, in the free 
and uninterrupted exercise of the powers conferred on 
it by the Constitution and to prevent any serious im- 
pediment being thrown in its way, while acting within 
the sphere of its legitimate authority." 88 

82 When property has been lawfully received by an administrator after death 
of an intestate, in virtue of his representative character, he is liable for it, either 
in that character, or personally, at the election of the party having a good title. 

83 Decatur v. Paulding 14 Peters 477. Several opinions were filed. 

84 In U. S. v. Stone 14 Peters 524, the Court discussed the jurisdiction in 
suits appealed from Circuit and district courts. 

85 Mitchell v. Lenox, 14 Peters 49. 

86 In West v. Brashear, 14 Peters 51, Taney gave opinion that the mandate 
of the Supreme Court to a Circuit Court must be the latter's guide in executing 
judgments, but that the mandate may be interpreted by the decision delivered 
in the case. 

87 Commonwealth Bank of Kentucky v. Griffith, 14 Peters 56. 

88 In an action of ejectment, coming from the District of Columbia (Rem- 
ington v. Linthicum, 14 Peters 84), he stated that the Court upheld the Mary- 



216 ROGER BROOKE TANEY 

The boundary dispute between Rhode Island and 
Massachusetts was again before the Court in 1840 89 and 
Taney delivered the opinion, not on the merits of the 
case, but upon the technicalities of pleading. He held 
that the case, which was one of first impression, but 
which has had a number of successors, to which States 
have been parties, should be conducted, according to 
Chancery pleading and practice rules, yet so moulded 
and applied as to bring the cause to a hearing on its 
entire merits and that it should not be decided on 
merely technical principles of chancery pleading. When 
a decision on a plea concerning the boundary might 
have the effect of keeping out of view some part of the 
merits of the complainant's case, the Court should re- 
fuse to decide the case on that plea. The charter of 
Massachusetts placed the south boundary of that 
Province three miles south of the Charles River. Com- 
missioners laid out a line between the two colonies 
between 1710 and 1718, but Rhode Island claimed that 
she never accepted their decision. The line as run, 
finally in 1719, was 7 miles, not 3 miles, south of the 
Charles and, when Rhode Island discovered this fact 
in 1749, she attempted to bring suit before the British 
Privy Council. The poverty of the Colony and the 
coming of the Revolutionary war caused delay. In 

land law that seizure and sale of land on a fieri facias passes title and that a 
return on an execution duly made at any time before trial is sufficient. In the 
case of the Bank of Alexandria v. Dyer, 14 Peters 141, Taney again interpreted 
a Maryland law, stating that the term "beyond seas," in the Statute of limita- 
tions as in force in Maryland and, consequently, in force in the District, did not 
exclude Alexandria, which was formerly in Virginia. In Brewer's Lessee v. 
Blougher 14 Peters 178, he held that the act of Maryland of 1825, declaring 
that illegitimate children were capable of inheriting from their mother, or each 
other, was not limited to the children of those capable of intermarriage, but 
also extends to the offspring of incest. 
89 14 Peters 210. 



ROGER BROOKE TANEY 217 

1782 and again in 1818, Rhode Island took up the 
matter, but no line was finally determined. Massa- 
chusetts claimed from a monument erected in 1642 and 
insisted on the line of 1719. Her plea would have 
caused the case finally to be disposed of on an issue 
highly disadvantageous to Rhode Island; but as At 
set up both an accord and compromise and also undue 
lapse of time on the part of the defence, Taney, for the 
Court, said the plea was bad for duplicity. 90 

In 1841, Taney's opinions are not so important and in 
the most important case, that of the Amistad, he did 
not render the opinion. 91 He gave the Court's opinion 
in the Rhode Island-Massachusetts boundary case in 
which a demurrer by the latter State 92 was over-ruled. 
Taney said that lapse of time, sufficient to create a 
bar of limitations, might be taken advantage of by 
demurrer, but that the period of twenty years was not 
to be applied between States, where all the circum- 
stances must be considered and the amount and kind of 
acquiescence ascertained. Two political communities 
are concerned, who cannot act with the same prompt- 
ness as individuals, and the boundary was in a wild 
unsettled country, while the only tribunal in colonial 
days was on the other side of the Atlantic. 93 

90 On land grants, see opinions in Lattimer v. Poteet, 14 Peters 4, where 
Taney concurred in the decision that North Carolina could not grant lands 
in the Indian country and that such grants were invalid; but dissented from 
the opinion, in that it found the Hawkins' line the true one established by the 
United States in accordance with the treaty of Holston (See Keene v.Whitaker 

14 Peters 170). 

91 J. Q. Adams Diary 10, pp. 399, 431, 432. Story delivered the opinion, 

15 Peters 513. 

92 15 Peters 233. 

93 Other opinions of Taney at this term were: (l) Coons v. Gallagher 15 
Peters 18. Under the Judiciary Act Section 25, the question mentioned must 
appear in the judgment below (an ejectment case) in terms, or by necessary 



218 ROGER BROOKE TANEY 

Groves v. Slaughter was an important case, involving 
the importation of slaves into Mississippi for sale. Clay 
and Webster were among the counsel and Justice 
Thompson delivered the opinion of the Court, in which 
it was stated that the power of Congress to regulate the 
traffic in slaves between the different States was not 
involved in the case. Justice McLean, however, in a 
concurring opinion stated his opinion upon that point. 
Taney was "not willing, by remaining silent, to have 
any doubt" as to his opinion upon the same point, but 
stated that, in his "judgment, the power over this sub- 
ject is exclusively with the several States." He does 
not "argue this question;" but, states his opinion, "on 
account of the interest which a large portion of the Union 
naturally feel in this matter and from an apprehension 
that my silence, when another member of the Court has 
delivered his opinion, might be misconstrued." He, 
furthermore, refused to express an opinion as to whether 
the "grant of power to the general government to 
regulate commerce, does not carry with it an implied 
prohibition to the States to make any regulations upon 
the subject, even although they should be altogether 
consistent with those made by Congress." This ques- 
tion was "one step further out of the case really before" 
the Court, and may await the time when "some prac- 
tical purpose is to be answered by deciding it." 94 

intendment, and it must also appear the decision was against the right claimed; 
(2) Ex Parte Crenshaw 15 Peters 119. A decree was revoked when the appellee, 
had not been cited as required by Act of Congress; (3) Lee v. Kelly 15 Peters 213 
on final decrees and appeal; (4) Gwinn v. Breedlove 15 Peters 284, on reinstate- 
ment of a case. (5) Houseman v. Schooner North Carolina, 15 Peters 40 (a 
salvage case), Taney considered the conduct of the Captain in paying salvors 
and held that, by fraudulent conduct, they forfeited all claim for compensation 
and the act of the Captain should be repudiated. 

94 Groves v. Slaughter 15 Peters 449, 508-10. Biddle p. 147, said Taney 
showed anxiety to leave the whole subject of this peculiar domestic institution 
to the exclusive control of the States themselves. 



ROGER BROOKE TANEY 219 

In 1842, Taney's most important opinion was a 
dissenting one in the case of Prigg v. Pennsylvania, 95 a 
case which Henry Wilson in his "Rise and Fall of the 
Slave Power" styles as "dangerous." "From the 
only good part of the decision," Wilson considered 
Taney to dissent. 96 The antislavery men maintained 
that the Slave power took the decision in this case as 
a "new concession and guarantee." 97 Several opinions 
were rendered in this case and Taney disagreed with 
some of the majority's reasoning, though not with their 
conclusion. 

Under the Constitution of the United States, the 
owner of a slave was clothed with entire authority in 
every State to seize and recapture his slave, whenever 
he could do so without breach of the peace, or any 
illegal violence. The fugitive slave act of 1793 was 
considered constitutional by the Court and, as the 
Pennsylvania Statute of 1826 was in conflict therewith, 
it was held to be void and a conviction under it was 
erroneous. The plaintiff's attorneys argued, "under 
the authority of the State of Maryland," and Story 
delivered the Court's opinion, showing that there was 
no division upon sectional lines. A negro woman 
slave had escaped from Maryland to Pennsylvania in 
1832 and, in 1837, Prigg, as her owner's agent, caused a 
constable in York County to seize her. The magis- 
trate, before whom the woman was brought refused to 
consider the case and Prigg then carried to Maryland 
the woman and her children, one of whom was born in 
Pennsylvania a year after her escape. The State of 
Pennsylvania sued Prigg for carrying away the woman. 

95 16 Peters 537 at 626. 

96 1 470-473. 

97 15 Atlantic Monthly 151. C. M. Ellis. 



220 ROGER BROOKE TANEY 

In the Court's opinion, which decided the case in Prigg's 
favor, Justice Story remarked that "few questions 
which have ever come before this Court involve more 
delicate and important considerations, and few upon 
which the public at large may be presumed to feel 
more profound and pervading interest." Slavery was a 
creation of municipal law and, without the constitu- 
tional provision, a free State might at once have freed 
each escaped slave within its borders — "a course which 
would have created the most bitter animosities and 
engendered perpetual strife between the different 
States." To prevent this condition of affairs, "this 
fundamental article" was inserted in the Constitution. 
Legislation was needed to "protect the right to enforce 
the delivery and to secure the subsequent possession of 
the slave." States cannot be compelled to enforce it, 
or to "provide means to carry into effect the duties of 
National Government." The law of 1793 is constitu- 
tional under the implied powers of Congress and the 
power depends exclusively upon the United States 
Constitution and hence is not concurrent with the States. 
The nature and objects of the provision in the Constitu- 
tion require a uniform system of regulations. Taney 
disagreed with that part of the opinion which main- 
tained that the power was exclusively a National one 
and held that the State authorities were not "prohibited 
from interfering, for the purpose of protecting the right 
of the master and aiding him in the recovery of his 
property." The Constitution merely prohibited the 
States from passing laws "impairing the right" and, 
consequently, the power of the States to "support and 
enforce" that right is "necessarily implied." Taney 
continued with the assertion, which has the true Federal- 
ist and Jacksonian ring, that "The Constitution of the 



ROGER BROOKE TANEY 221 

United States, and every article and clause in it, is a 
part of the law of every State in the Union and is the 

paramount law Why may not a State 

protect an article of property acknowledged by its own 
paramount law? Other rights of property are pro- 
tected for citizens of other States by the States." Why 
may not slaves be so protected? The delay of four years 
in passing the National law, after the Federal govern- 
ment was organized, confirmed his view. "The State 
officers mentioned in that law are not bound to execute 
the duties imposed upon them by Congress, unless they 
choose to do so, or are required to do so by a law of the 
State, and the State legislature has the power, if it 
thinks proper, to prohibit them. The Act of 1793 
must depend altogether for its execution upon the 
officers of the United States named in it." 

Congress never designed, in Taney's opinion, that a 
master should be compelled to go before a District 
Judge, but the act showed that the "cordial cooperation 
of the States was counted upon." Maryland had 
passed such a law which was continually appealed to, 
as fugitives, passing through the State on their way to 
Canada, were captured. The arrest and confinement 
of the fugitive were not necessary for the internal peace 
of the State, so that such a law is no police regulation, 
but one giving effect to the provisions of the Federal 
Constitution. 98 

Taney's other opinions that year were of little im- 
portance." In two patent cases Taney wrote the 

98 Vide Tyler, p. 283. 

"They were in the cases of (1) Fulton v. M'Affee (a question of procedure 
and jurisdiction) 16 Peters 149; (2) Kelsey v. Hobby (Liquidation of partnership, 
release and cross bills), 16 Peters 269; (3) Parish v. Ellis (Dower in Florida), 16 
Peters 513; (4) Mills v. Brown (no jurisdiction existed in the Supreme Court, 



222 ROGER BROOKE TANEY 

opinion, in one of which the position was taken that a 
combination of three distinct things was not infringed 
by combining two of them with a fourth thing. 100 

In Martin v. Waddell 101 two justices dissented from 
Taney's opinion in a case of ejectment for one hundred 
acres of land covered with water at Perth Amboy in 
New Jersey. The principal right in dispute was the 
property in the oyster fisheries and the Court had to 
consider the rights arising under colonial grants from 
the Crown of England. After stating that "the English 
possessions in America were not claimed by right of 
conquest" from the Indians, who were "regarded as 
temporary occupants of the soil;" but "by right of 
discovery," Taney briefly summed up the English 
law on the subject of grants of fisheries but said that 
this had "ceased to be a matter of much interest in 
the United States, for when the Revolution took place, 
the people of each State became themselves sovereign; 
and in that character hold the absolute right to all 
their navigable waters and the soils under them for 
their own common uses, subject only to the rights since 
surrendered by the Constitution to the general govern- 
ment." He then proceeded to examine whether the 
"dominion and propriety in the navigable waters and 
in the soils under them passed as a part of the preroga- 
tive rights annexed to the political powers conferred 
on the duke" of York by Charles II in his original 
grant. Taney held that the charter should not be 
construed technically, but as "an instrument upon 

when it did not appear in the record that a Constitutional question was raised 
in the Court below), 16 Peters 525. 

100 Prouty v. Ruggles (a plough patent) 16 Peters 336, the other case was 
Carver v. Hyde 16 Peters 513. 

101 16 Peters 367. 



ROGER BROOKE TANEY 223 

which was to be founded the institutions of a great 
political community." Consequently, the waters and 
the underlying soil were to be held as a public trust. 
The subsequent history of New Jersey showed that the 
people, until a very recent date, had enjoyed the rights 
of "fishery for shell fish, as a common and undoubted 
right," which the Court sustained against a claim of 
proprietary right. 

In 1843 Taney's chief opinion related to a bequest of 
slaves in Maryland to a man, "provided he shall not 
carry them out of the State of Maryland, or sell them 
to anyone, — in either of which events, I will and devise 
the said negroes to be free for life." The Court held 
this to be a valid conditional 102 limitation of freedom 
to the slaves, which took effect upon a sale of them. A 
bequest of freedom to slaves in Maryland was considered 
a specific legacy. If the legatee had died without a 
sale or transportation, the petitioners would have con- 
tinued slaves for life and the event was not too remote, 
nor was there an unlawful restraint upon alienation. 

In another case, 103 a mortgage contained a power to a 
creditor to sell on breach of the condition, and a statute, 
subsequently passed by the State, gave the mortgagor 
twelve months to redeem the property and prohibited a 
sale at less than two thirds of its value. This law was held 
void, as impairing the obligation of a contract, since a de- 
nial of a remedy may constitute such an impairment. 104 
Story 105 considered this case an important one and read 
Taney's opinion "with the highest satisfaction," regard- 
ing it as "drawn up with great ability" and as "entirely 

102 Williams v. Ash 1 Howard 1. 
103 Bronson v. Kinzie 1 Howard 311. 

104 Subsequent mortgages were subject to the laws. 

105 Tyler, p. 289. 



224 ROGER BROOKE TANEY 

conclusive." In writing to Taney concerning the case, 
Story expressed the hope that the "opinion was unani- 
mous" and added that "These are times in which the 
Court is called upon to support every sound constitu- 
tional doctrine, in support of the rights of property and 
of creditors." 106 

In 1844, Taney delivered several rather important 
opinions for the Supreme Court. One of these opinions 
held that a Pennsylvania act imposing toll on carriages 
transporting the United States mail over the Cumberland 
Road, 107 violated the compact between the United 
States and Pennsylvania made by the Act of 1835, by 
which the State took possession of the road. The con- 
stitutional power of the Federal Government to con- 
struct such a road and the rights of the United States in 
the road, prior to the compact, were not involved in 
in the case. The State had a right to enter into a com- 
pact with the Nation to maintain the road. The con- 
tract was not one between individuals, but "between 
two governments, deeply concerned in the welfare of 
each other; whose dearest interests and happiness are 
closely and inseparably bound up together and where an 
injury to one cannot fail to be felt by the other." To 
tax the mails was to tax all of real value of federal 

106 The other cases reported in 1 Howard are unimportant : viz. (1) Smith v. 
Coudry 1 Howard 28 (collision); (2) McKnight v. Taylor 1 Howard 161 (Trust 
created for the payment of creditors — the right began to sue in April 1818 but 
no steps were taken until August 1837 — equity will not intervene after such an 
unaccounted for delay); (3) Jewell's Lessee v. Jewell 1 Howard 219 (marriage 
in Georgia or South Carolina, per verba in praesente, Court equally divided); 
(4) Bank of Metropolis v. N. E. Bank 1 Howard 234 (negotiable paper) ; (5) Nelson 
v. Carland 1 Howard 265 (Procedure under bankruptcy act) ; (6) Taylorv. Savage 
1 Howard 282 (On removal of executor and appointment of an administrator 
de bonis non)\ (7) Minor v. Tillotson, 1 Howard 287 (writ of error). In2Howard, 
for some unascertained reason, I find no opinion by Taney. 

107 Searight v. Stokes 3 Howard 151. 



ROGER BROOKE TANEY 225 

property over the road, except for occasional military 
use. The United States had, ''unquestionably, a prop- 
erty in the mails. They are not mere common carriers, 
but a government, performing a high official duty in 
holding and guarding its own property, as well as that 
of its citizens committed to its case." The United 
States, however, could not claim exemption for more 
carriages than those necessary for the "safe and speedy 
and convenient conveyance of the mail," and other 
property or persons in the same vehicle with the mail 
were held not to be exempt from toll. 

In another case, in which an act of Ohio was con- 
sidered 108 imposing toll on passengers on the Cumberland 
Road travelling in mail coaches, Taney held that the 
toll imposed on the United States part of the burden of 
support of the road, contrary to the contract between 
Ohio and the United States, especially since passengers 
in other vehicles were allowed to go free. 

In Kendall v. Stokes 109 the Court held that a public 
officer was not liable in an action for an honest mistake, 
made in a matter where he was obliged to exercise his 
judgment, even though an individual may suffer through 
this mistake. An application by a private person for 
a mandamus proceeds on the ground that he has no 
other adequate remedy and, after the mandamus has 
been awarded, an applicant cannot have an action in 
the case for the same cause, though he may have one 
for a disobedience of the mandamus. After an award 
and the receipt of the money awarded, an action for the 
original cause cannot be maintained on the ground that 
the claimant did not claim, or prove before the referee, 
all the damages sustained. If the Postmaster General 

108 Neil v. Ohio 3 Howard 720. 

109 3 Howard 87. 



226 ROGER BROOKE TANEY 

wrongfully refuses to give credit to a contractor and the 
latter should be entitled to an action for damages, he 
cannot recover special damages (beyond interest) for 
the detention of the money. Kendall acted wrongly, 
but in good faith, in witholding payment for a claim 
upon which his predecessor had acted finally. 

Another case involved Maryland's subscription of a 
million dollars to the Baltimore and Ohio Railroad, 
provided that, if the road should not pass through 
certain towns in Washington County, the Company 
should forfeit the subscription to the State to be used 
for Washington County. 110 Biddle remarks 111 that the 
"reasoning of the Chief Justice in this case is marked 
by breadth of view and intelligent discrimination and the 
application of sound principles of law to the case." The 
Railroad had assented to the above named condition, as 
a part of its charter. The Court held that the law 
inflicted a penalty, that nothing was due to the company 
by contract, and that the State could release and had 
released the penalty, by a subsequent Act. The Act of 
1835 had been repealed in 1840, and the language of the 
former act was not that of a contract, but was mandatory 
and in the exercise of legislative power. In the course 
of the opinion, Taney said that public corporations were 
created for purposes of government and that counties 
were only certain portions of territory into which the 
State is divided for the "more convenient exercise of the 
powers of government." 112 

A number of tariff decisions were made by Taney at 
this term of Court, interpreting the act of 1842. 113 

"° Maryland v. B & O. R. R. 3 Howard 534. 

111 Const. Hist., p. 159. 

112 Stimpson v. Westchester R. R. C. another railroad case, involving a writ 
of certiorari, 3 Howard 553. 

113 ( 1 ) Aldridge v. Williams, 3 Howard 1 (Appraisal of exports) ;( 2 ) Curtis v. Mar- 
tin, 3 Howard 107 (Duty on cotton bagging); (3) Swartwout v. Gihon 3 Howard 



ROGER BROOKE TANEY 227 

In 1845, Taney's only important opinion was one 
concerning the country occupied by Indian tribes and 
not included within the boundaries of any State. 114 As 
to such territory, the Court held that Congress had 
power to enact a law to punish offences committed 
either by whites or Indians. A white citizen of the 
United States, who had been adopted and domiciled 
by the Cherokees, was not considered to be an Indian; 
but could be tried for murder in the United States 
Court for the District of Arkansas. 115 

"The native tribes," in Taney's words, 116 "who were 
found on this continent at the time of its discovery, 
have never been acknowledged or treated as independent 
nations by the European governments, nor regarded as 
the owners of the territories they respectively occupied. 
On the contrary, the whole continent was divided and 
parcelled out and granted by the governments of Europe, 
as if it had been vacant and unoccupied land and the 
Indians' territory held to be and treated as subject 
to their dominion and control." The United States 

110 (a verbal protest against an illegal exaction of duties is sufficient). Minor 
miscellaneous opinions were in the cases of: (1) Savage's Assignees v. Best, 3 
Howard 111 (In Kentucky, delivery of a fieri facias to a sheriff creates a hen on 
debtor's lands as valid as though a levy had been made on them); (2) Nugent 
v. Boyd, 3 Howard 420 (Bankrupt law, dissent) ; (3) U. S. v. Hodge, 3 Howard 
534 (procedure); (4) Brown v. Hunt, 3 Howard 650 (land patent, dissent without 
opinion) ; (5) Wilson v. Smith, 3 Howard 763 (Collection of bill) ; (6) Winston v. 
U. S., 3 Howard 771 (Motion to dismiss suit) ; (7) Ross v. Prentiss, 3 Howard 771 
(Limit of jurisdiction); (8) U. S. v. King, 3 Howard 773 (Spanish land grant in 
La.), Biddle (Consti. Hist. p. 161) writes that the decision in the last case 
(The same case came up again in 7 Howard 833), "although doubtless bearing 
hard occasionally upon innocent purchasers for value, contains the only true 
solution of the difficulties surrounding such grants." 

114 U. S. v. Rogers 4 Howard 567. 

115 Biddle, Const. Hist. p. 159, calls this opinion a "brief, lucid, and forcible 
discussion" of the rights of Indian tribes. 

116 page 572. 



228 ROGER BROOKE TANEY 

Government has exercised its power over them "in the 
spirit of humanity and justice. But had it been other- 
wise, it is a question for the lawmaking and political 
department of the government and not for the judi- 
cial It is our duty to expound and execute 

the law as we find it." In such firm language, does 
Taney express the doctrine of the separation of powers. 117 

The great case of Rhode Island v. Massachusetts 
came up for final decision at this time. Taney had 
dissented in the preliminary decision 118 but now 119 
he concurred in holding that Massachusetts won the 
dispute. 120 

Taney's official life was not altogether confined to 
the Bench. On February 24, 1845, he wrote to his 
wife 121 that 

The Court in a body, with Marshal, Clerk and Reporter, waited 
on President Polk, on last Wednesday morning, in due form. We 
were, as you may suppose (that is, the President elect and myself) 

117 Minor opinions at this term are (1 ) Tombigbee R. R. v. Kneeland, 4 Howard 
17 (affirms Bank of Augusta v.Earle); (2) Spalding v. N.Y., 4 Ho ward 2 ^(Bank- 
ruptcy law) , (3) Maney v. Porter, 4 Howard 55 (Jurisdiction ; (4) Agricultural Bank 
of Mississippi v. Rice 4 Howard 225 (Married woman's deed) ; (5) Aspden v. 
Nixon, 4 Howard 467 (Dissent without opinion. Effect of Chancery Decree) ; 
(6) Barry v. Mercein, 4 Howard 574 (Procedure). In a case from Florida, he 
delivered an opinion to the effect that the control of the records of the Terri- 
torial Court of Appeals of that State belongs to the United States, and 
not to the State, and that the Supreme Court would not issue a writ of 
error to a court no longer in existence. Hunt v. Palao, 4 Howard 589. In 
Gwinn v. Holliday, 4 Howard 1, the Court held that, if an execution creditor 
authorized a Deputy Marshal to receive in payment of a debt other currency 
than gold or silver, the latter acts as agent of the creditor and not as deputy 
marshal, so that the marshal is not responsible for his acts. 

118 In 12 Peters. 

119 4 Howard 591. 

120 He filed a separate opinion, but said nothing as to the merits of the case 
and was not even present at the elaborate arguments upon the evidence. 

121 Tyler, p. 472. 



ROGER BROOKE TANEY 229 

glad to meet here again under such circumstances, and talked about 
old times, as much as we could in the five minutes we were together. 
I have not yet been able to wait on Mrs. Polk; but must do so 
before I leave Washington. 

In the evening, we went to President Tyler's. There must 
have been, I think, a thousand people there — well-dressed, well- 
behaved people, for none others were there. You know the Presi- 
dent and I are good friends, and he and Mrs. President received 
me with great kindness; and I met there more old friends, and 
spent a more pleasant evening than I expected; except only that 
I was greatly oppressed, as I always am on such occasions, by 

the crowded state of the rooms President Tyler's 

Cabinet were all there; but I suppose you have heard that they 
are all to go out, as soon as Mr. Polk comes in. But we do not 
yet know who will come in; and I am too busy in Court to make 
many inquiries. 

During these ten years, many changes had taken 
place in the membership of the Court. Barbour had 
come upon the Bench about the same time as Taney, 
but had died suddenly in 1841 and had been succeeded 
by Daniel. Catron and McKinley had been appointed 
in 1837, when the number of judges was increased to 
nine. 

Story was still dissatisfied with the principles upon 
which the Court's decisions were being based and in a 
tone of profound melancholy wrote a friend, the Hon. 
Ezekiel Bacon, in April, 1845. 

I have been long convinced that the doctrines and opinions of 
the "Old Court" were daily losing ground, and especially those on 
great constitutional questions. New men and new opinions have 
succeeded. The doctrines of the Constitution, so vital to the 
country, which in former times received the support of the whole 
Court, no longer maintain their ascendancy. I am the last 
member now living of the old Court and I cannot consent to re- 
main, where I can no longer hope to see those doctrines recognised 



230 ROGER BROOKE TANEY 

and enforced. For the future, I must be in a dead minority of 
the Court, with the painful alternative of either expressing an 
open dissent from the opinions of the Court, or, by silence, seeming 
to acquiesce in them. 122 

In this state of affairs, Story had decided to resign his 
seat on the Bench and devote himself entirely to his 
law professorship in Harvard University, when his 
death came, on September 10, 1845. 

His relationship to Taney had always been one of 
"the most intimate friendship." They were frequent 
correspondents, both upon official and personal matters, 
and this friendship extended on the part of Story to 
Taney's family also. He never passed through Balti- 
more, without paying his respects to Mrs. Taney, 
either in person, or by a note expressing his regret that 
he could not call. He condoled with Taney and his 
wife over the death of Francis Scott Key, which loss to 
the Chief Justice and his wife was "irreparable and to 
the public, in the truest sense of the word, a deep 
calamity." He wrote Taney of his hopes to take a 
journey to England and of his health. He fully appre- 
ciated Taney's ability and learning. 123 

Shortly after Story's death, Taney wrote Mr. Peters, 
the Court Reporter, thus: 

What a loss the Court has sustained in the death of Judge 
Story. It is irreparable, utterly irreparable in this generation; 
for there is nobody equal to him. You who have seen me sitting 
there for so many years between Story and Thompson will readily 
understand how deeply I feel the loss of the survivor of them, 
especially so soon after the death of the other. 

i 22 Tyler, p. 285. 
123 Tyler, p. 288. 









ROGER BROOKE TANEY 231 

At the opening of the succeeding term of the Supreme 
Court in the memorial proceedings, Taney said : 

It is difficult for me to m express how deeply the Court feels the 
death of Mr. Justice Story. He held a seat on this Bench for so 
many years and was so eminently distinguished for his great 
learning and ability, that his name had become habitually asso- 
ciated with the Supreme Court, not only in the mind of those 
more immediately connected with the administration of justice; 
but in that of the public generally throughout the Union. He 
had, indeed, all the qualities of a great judge, and we are fully 
sensible that his labors and his name have contributed largely to 
inspire confidence in the opinions of this Court and to give weight 
and authority to its decisions. His legal works had made him 
known wherever juridical knowledge is esteemed and cultivated 
.... but it is here on this Bench, that his real worth 
was best understood and it is here that his loss is most severely 
and painfully felt. For we have not only known him as a learned 
and able associate in the labors of the Court, but he was endeared 
to us as a man, by his kindness of heart, his frankness, and his 
high and pure integrity. 

124 Story's Story II 632, 633. 



CHAPTER X 

Friendship with Jackson and Private Life 

(1836-1846) 

On March 17, 1836, John Forsyth, Secretary of State, 
sent Taney his commission as Chief Justice of the 
United States. 1 This official intimation of the confir- 
mation by the Senate of the nomination which Jackson 
had made, was not the first knowledge which Taney 
had of the matter, for "many" of his "friends had 
written" him concerning this event, and their letters 
had been received by him on the sixteenth. On the 
seventeenth, Taney wrote from Annapolis to Jackson a 
letter which I dislike to quote, for it is a very regrettable 
one, showing narrowness, vindictiveness, and rancor. 
He told the President that 

I feel that the first letter I write after the receipt of this in- 
telligence should be addressed to you, to express the deep sense I 
shall ever retain of the constant kindness with which you have 
supported me, until you have finally placed me in the high station 
which I now fill and which is the only one under the government 
that I ever wished to attain. 

His loyalty to Jackson was admirable and perfect, and 
the jurist continued: 

There are, indeed, circumstances connected with my appoint- 
ment, which render it more gratifying than it would have been 
in ordinary times. In the first place, I owe this honor to you, 
to whom I had rather owe it than to any other man in the world, 
and I esteem it the higher, because it is a token of your confidence 
in me. 

1 13 Md. Hist. Mag. 166. 

232 



ROGER BROOKE TANEY 233 

In the second place, I have been confirmed by the strength of 
my friends, and go into the office, not by the leave, but in spite 
of the opposition of the men who have so long and so persever- 
ingly sought to destroy me, and I am glad to feel that I do not 
owe my confirmation to any forbearance on their part, and it is, 
also, not a little pleasant to find that Mr. Kendall, with whom I 
have passed through so many trying scenes, and who shared with 
me so largely the vindictive persecution of the panic, was, in the 
same session of the Senate in which I was confirmed, and in the 
same hour, placed firmly in the high station to which you have 
called him, and which he is so entirely worthy to fill, and that he is 
no longer in the power of those who have sought and still seek 
to make him one of the victims of their vengeance, and it is a 
still further gratification to see that, if providence spares our lives, 
it will be the lot of one of the rejected of the panic Senate, as the 
highest judicial officer of the country, to administer, in your 
presence and in the view of the whole nation, the oath of office 
to another rejected of the same Senate, when he enters into the 
first office in the world, and to which it is now obvious that an 
enlightened and virtuous people are determined to elect him. The 
spectacle will be a lesson which neither the people nor politicians 
should ever forget. 2 

Taney's political connection with Jackson's adminis- 
tration continued until its very end. He sent a paper, on 
June 20, with the request that Major Donelson acknowl- 
edge the receipt of it, as Taney had not entire confidence 
in the Post Office. The paper was written in Washington, 
and was a draft of a veto message of a bill for the charter 
of banks in the District of Columbia, for which Jackson 
had asked Taney. Taney endorsed on the draft, how- 
ever, "as no constitutional question is involved, and the 
responsibility properly in such cases as this, belongs to 
Congress, I respectfully advise that it is not, under pres- 

2 Amos Kendall had been appointed Postmaster General, and the Senate 
had formerly rejected the nomination of Van Buren as minister to England. 



234 ROGER BROOKE TANEY 

ent circumstances, a case fit for a veto." Taney was 
about to take a steamboat for Delaware at 6.00 a.m. on 
the morrow, and so could not copy the document fairly, 
but sent it with interlineations. He believed the position 
sound, and that Jackson was right. He did not like to 
see Jackson in another controversy, but added: "Men 
think differently, you must decide." If Taney had 
more time given him, he would have presented his views 
upon other subjects which Jackson may discuss, if the 
bill to deposit the surplus revenue with the States 
ever come to him — such subjects as: (1) there is no 
surplus; (2) the distinction between an "accidental and 
a systematic surplus" which had already been made in 
Jackson's previous messages, especially in the first 
veto of the land bill; (3) the desire to have a surplus 
would have an injurious effect upon legislation, which 
desire had already caused forts to fall into decay before 
completion and had crippled the navy (these proofs, 
arising from experience, of the disadvantage of having a 
surplus to distribute, ought to convert dissidents); (4) 
the consequences which follow the relation of creditor 
and debtor between the United States and the States, 
and the impossibility of requiring a repayment, for the 
people in the States should not be taxed to pay them- 
selves in the general government; (5) the wild measures 
and spirit of speculation afloat "would be encouraged 
by the division of public money and the struggles to 
obtain it would engender corruption." The bill was 
passed, and the only reason that its effects were not 
fully as bad as Taney feared, was that the troubled 
condition of financial affairs soon put an end to the 
surplus. A week later, on June 27, when Taney had 
returned to Baltimore from holding court in Delaware, 
he wrote again, stating that the argument he had 



ROGER BROOKE TANEY 235 

sent was grounded altogether on the position that the 
Senate bill "proposed, in effect, a loan to the States, or 
an investment in their stocks, and not a deposite of the 
money of the United States in the true and proper 
sense of that word." The amendment to the bill 
made by the House of Representatives, removed that 
objection and made the States depositories. There 
was no constitutional difficulty in the bill, but it was 
only bad policy. Consequently, Taney repeated his 
recommendation that the responsibility be left on 
Congress and no veto message be sent. The policy of 
the bill appeared to Taney "most unfortunate and mis- 
taken;" for, if Congress may "raise a revenue beyond 
the wants of the General Government, and may de- 
posite the money, where they please, either with a 
state or a corporation, and may suffer that money to 
remain there to the end of time, while they are raising 
more to add to it, I see no limitation whatever to the 
powers of the general government By con- 
tinuing to collect a revenue, which they admit they 
cannot employ usefully for the purposes of the general 
government, they assert, in effect, unlimited power of 
taxation." "The friends of a strict construction of the 
powers of the general government," Taney continued, 
will find that "they have placed themselves in difficulty," 
and cannot get money back from the States, for the 
impression had been made that "it is never to be re- 
called and so they sanction a principle opposed to their 
construction of the Constitution." "It will be no 
easy matter," in the writer's opinion, "to set limits to 
the powers of government, which may raise what money 
it pleases, and apply it indirectly to what purposes it 
pleases, by depositing it with a State, or a corporation, 
or an individual, with the understanding that it is 



236 ROGER BROOKE TANEY 

never to be recalled." "Every political friend" with 
whom Taney had spoken, regretted the bill, yet thought 
Jackson was right in "not vetoing it, from the vast 
majorities by which it was passed." 

Politics in Maryland were at a white heat in 1836. 
The large counties, in which the Democratic party was 
strong, insisted on a larger representation in the legisla- 
ture, and, when they could not obtain what they be- 
lieved should have been granted them in the regular 
constitutional way, revolutionary measures were dis- 
cussed. 3 Taney discountenanced any extra constitu- 
tional steps, and, although in September, Frank P. 
Blair 4 wrote him that his attitude was "causing the 
opposition to make great headway against our friends 
in Montgomery County," he declined to change his 
position. 5 

On October 15, 1836, Jackson wrote Taney con- 
cerning his farewell address. When would be the most 
opportune time of presenting it? At the beginning or 
the end of the Congressional Session? What topics 
should be introduced? and "what range should it 
take?" for example, ought not "Our glorious Union" 
be treated as "permanently important," the dangerous 
power of the United States Bank and "privileged 
monopolies generally" be discussed, and the "gradual 
consuming corruption" in legislatures, through the 
"paper system," be condemned? 

It was not merely the desire to vindicate a friend and 
adherent that had led Jackson to appoint Taney Chief 

3 Tyler, p. 246. 

* 13 Md. Hist. Mag. 166. 

5 For full discussion of the political situation in Maryland at this time, see 
Steiner's "Electoral College for the Senate of Maryland and the Nineteenth 
Van Buren Electors" in American Historical Association Proceedings for 
1895. pp. 129-167. 



ROGER BROOKE TANEY 237 

Justice. He had learned to lean upon the Marylander's 
advice and opinion. The popular judgment 6 might have 
designated Story to succeed to Marshall's place, through 
his ability, worth, and reputation, and his early cham- 
pionship of the Republican party in New England, but 
Jackson believed too thoroughly in Taney to give the 
great position to any other man. Taney replied to 
Jackson, on October 27, that he would have his sugges- 
tions for a farewell address ready by January 1. He 
was pleased to see the success of Jackson's measures 
and believed that the Treasury order, requiring that the 
payments for public lands be made in specie, had 
saved the West from bankruptcy and ruin. The order 
had been a benefit to the Atlantic States also, making 
the banks adopt a more cautious policy. That pressure, 
concerning which complaint was made, would have 
been far more severe without that order, and, in any 
case, the disturbed situation of the money market in 
England would have been felt in the United States. 
"The main cause of the evil here," in Taney's opinion, 
"is unquestionably, the sudden and exorbitant increase 
of paper currency," through the "immense increase of 
its issues by the Bank of the United States in the last 
months of its existence." This increase created a 
"craze for wild and mad speculation." The Bank 
tried to produce trouble, and influence the Presidential 
election, and had "not abandoned its designs to obtain 
control of the general government." The deposit 
bill also caused trouble, for "the greater part of the 
surplus revenue had been loaned merchants in commer- 
cial cities and the mere transfer of it from the banks 
which had loaned it to others," for a time "withdrew it 
from commercial operations." The newspapers, in- 

6 Cf. Ill Parton's Jackson 559. 



238 ROGER BROOKE TANEY 

fluenced by the merchants, were most clamorous for 
the measure, and now reap the fruits." It was a 
repetition of their folly in 1833 and 1834. Then 
they tried to throw the blame for financial disturbances, 
now they threw the blame on the Treasury land circular. 
There was no foundation for either charge. The mer- 
chants, as a class, were obviously "led astray by political 
leaders more easily than any other class of citizens." 
"The currency," he concluded, will be "always liable 
to these ruinous fluctuations, while it continues to be 
of paper." No notes should be issued under "twenty 
dollars, and fifty would be better." The States will 
not prevent the issue of smaller notes, so Congress must 
do so. 

In November, Taney wrote Jackson twice, in reference 
to Federal appointments in Baltimore, for he continued 
to be the administration's political adviser in these 
matters. The earlier of these letters, written on the 
18th, has not been found, but the second letter, written 
a day later, states that further inquiry made Taney 
feel that he was correct in the advice contained in the 
former epistle. The appointment, as collector of the 
port of Baltimore, of either Frick 7 or White would be a 
good one, and as "well received as could be expected, 
where so many will be disappointed, let who will 
succeed." Mr. Frick had been an "active politician 
for many years, and a man of high standing. He was a 
Jacksonian presidential elector in 1832, and a candi- 
date for elector in 1836. He had 

mixed much with the people, especially with those who take an 
active part in political concerns, is a popular man, and, I think 
his appointment would be more generally acceptable in the first 

7 Frick was doubtless William Frick, a lawyer, White was John White. 



ROGER BROOKE TANEY 239 

instance than that of Mr. White, whose situation as a cashier of 
the Branch Bank has precluded him from mixing much with the 
people, or taking an active part in political contests. But the 
high character of Mr. White, his undoubted qualifications for the 
office, indeed, I may say, his peculiar qualifications, would, I 
have no doubt, make his appointment, after a little time, per- 
fectly acceptable to the great body of our friends 

The intimate knowledge of the commercial community, which he 
must have acquired as cashier, would be exceedingly valuable in 
a collector, who is constantly called on to decide on the sufficiency 
of the suretys offered on duty bonds. He is moreover, greatly 
esteemed and respected by this community, and no one can 
doubt his integrity, his firmness, or his entire fitness for his office. 

The aged General Samuel Smith had been suggested 
for the collectorship. Taney thought that this "appoint- 
ment would not be complained of," on account "of his 
long public services," Yet it "would not be acceptable 
to our friends generally." Smith was one of "a small 
number" in Baltimore who favored McLane as Jack- 
son's successor. He was so opposed to Van Buren 
that he did not make up his mind to vote for him, 
until the preceding summer, and was "never regarded as 
cordial in his support." Furthermore, Smith was 
Mayor of the City, and, if that office should be vacated, 
the opposition might carry the election for a successor, 
since "matters have been sadly mismanaged here, 
and the party is not united as it should be." The 
great body of Jacksonians "are not willing that General 
Smith should be appointed, and have not confidence in 
him," yet none of Jackson's "real friends would com- 
plain," in the event of Smith's appointment. 

Carr 8 had also been suggested, but Taney felt there 
were "strong objections" to him. He was honest, but 

8 Carr has not been identified. 
John K. Law was the Collector at that time. 



240 ROGER BROOKE TANEY 

"manages his own money concerns very badly," and 
does not, by any means, stand high for prudence, or 
punctuality, in money affairs. The handling of public 
money might benefit him, besides, it is understood that, 
if appointed collector, he has agreed to retain in office 
the son of the late collector — a "political opponent" 
and, therefore, he is recommended by merchants who 
are "our bitter opponents." The son referred to is a 
"very worthy man and an excellent officer." Taney 
had "no desire to see him removed," but thought that 
the collector ought to take his office unhampered by 
pledges. 

Lyde Goodwin 9 was a fifth candidate, but his "neces- 
sities and indiscretions in money matters seem to form, 
in the opinion of our friends here, insuperable objections" 
to him. He "would not have the confidence of the 
public." Wilmer, 10 sixth candidate, was unfit. "The 
Convention" had presented the name of a seventh man, 
Samuel Harker. 11 It would be an "extreme indiscre- 
tion," in Taney's opinion, to name him, for "you can 
hardly imagine a man more unfit and more unworthy 
of such an office." In fine, Taney advised delay in 
making the appointment. 

In the beginning of December, Jackson sent Taney 
a copy of his annual message, together with a "kind 
note," 12 asking an opinion upon the message and Taney's 
views upon the farewell address, which note Taney 
acknowledged on the 8th. Taney found that the 
message was making a "strong impression" in Balti- 
more, and he trusted the impression would be a durable 

9 Lyde Goodwin is given in the "City Directory" for 1835 without occupation. 

10 Wilmer was probably L. A. Wilmer, painter. 

11 Samuel Harker was editor of the "Baltimore Republican." 

12 4 Md. Hist. Mag. 304. 



ROGER BROOKE TANEY 241 

one. The arguments on the " deposite law " and on the 
currency were found to be "clear and decisive." The 
reference to the first United States Bank was "one of 
those historical recollections that should often be 
recalled." Taney also thought that the "wisdom and 
foresight of your Treasury order as to specie payments 
for the public lands is becoming every day more mani- 
fest." Without it, "pressure would have been greater 
and there would have been an explosion of Western 
banks." 

The Circuit Court's session would end on the following 
Monday, and Taney could then turn his thoughts to 
Jackson's farewell address. Taney rejoiced that Benton 
was pressing forward his "expunging resolution" and 
that Jackson's health was better, so that he may "wit- 
ness the happiness of a grateful people." 

During the recess of the Supreme Court, on January 
27, 1837, Taney wrote Jackson an acceptance of a 
dinner invitation to the White House, and congratu- 
lated the President on his "proud and noble triumph, 
in which an indelible and enduring mark of reproach, 
which a faction endeavored to fix upon you, has, by 
the command of millions of people, been stamped 
upon their own foreheads." This grandiose sentence 
referred to the passage of Benton's resolution by the 
Senate, expunging from its records the resolution 
condemming Jackson for his conduct relative to the 
removal of the deposits from the Bank of the United 
States. 

The relations between the President and the Chief 
Justice continued to be very intimate, until the very 
end of the administration. The idea of Jackson's Fare- 
well Address, probably, took its inception from Washing- 
ton's. The paper was composed by Taney, whose ideas 



242 ROGER BROOKE TANEY 

were identical with his chiefs. 13 On February 9, Jackson 
wrote a curiously formal note : 14 

The President with his respects to Chief Justice Taney, and 
being informed by Mr. Blair that the Supreme Court will adjourn 
on Saturday next, The President requests him to come and take 
a room with him during his stay. The President will have the 
room warmed on Saturday, if Mr. Taney will be here on that 
evening to occupy it. 

After retiring from the Presidency, Jackson lived 
for eight years at his plantation, the Hermitage, near 
Nashville. Once or twice every year, Taney wrote him 
long letters, to which most of the replies have not 
been found and two of Taney's letters seem to have been 
destroyed. The Chief Justice was no traveller, and I 
find no record that he ever went anywhere, except to 
hold court, or to spend a summer at a Virginia watering 
place. But he always had it in mind to visit Jackson, 
and it is pathetic to see how, in one letter after another, 
he states that he has been obliged to defer the consumma- 
tion of this desire. The letters also show clearly that 
the intimacy was not merely between the heads of the 
two households, but that the ladies and children partook 
of the friendship. 

After Van Buren's inauguration, the first of the 
long series at which Taney gave the oath to the Chief 
Magistrate, Jackson stopped to visit Taney in Balti- 
more, on his way to Tennessee. 18 

Shortly after the administration of Van Buren began, 
Taney wrote him on April 1, 1837, from Baltimore 16 and 

13 Tyler, p. 409 

M 13 Md. Hist. Mag. 160. 

15 III Parton's Jackson, p. 629. 

16 8 Md. Hist. Mag. 317. Van Buren had written Taney about an appoint- 
ment to Federal office and Taney gives his opinion of Murray. 



ROGER BROOKE TANEY 243 

expressed pleasure that he had left "the special treasury 
untouched," for any change would have produced 
"an expansion of the paper currency." On April 30 
a second letter was written to Van Buren, asking that 
he write prominent Baltimoreans to prevent them from 
becoming discontented; a third letter, dated July 20, 
answered Van Buren 's questions in regard to the proper 
measures which should be taken to meet the financial 
situation and to secure the resumption of specie pay- 
ments by the banks. Taney disapproved of keeping the 
public money in the Sub-treasury, and thought that 
"the banks never will resume specie payments," until 
the merchants were compelled to pay their bonds on 
goods imported from foreign countries. Taney then 
referred to the attack made upon him by Clay, on 
account of his being a stockholder in the Union Bank, 
and apprised Van Buren that "I'd not now hold a 
single share of stock in any bank, nor do I owe any 
Bank a single dollar." 

The first of these letters by Taney to Jackson was 
written in Baltimore on July 3, 1837. Taney had 
rented a "pretty little place" three miles from Balti- 
more for his family for the summer. All the family 
had been ill during the preceding winter. He already 
meditated writing a never- to-be-written "history of the 
panic year," but must visit Jackon before beginning 
work upon it. Like King Charles's head in the novel, 
the Bank of the United States, that prime villain, 
figures largely in the epistle. Since that institution had 
secured a Pennsylvania charter, Taney was certain that 
it was "busy in preparing for the overthrow of the 
State Banks, and operating with all its power to produce 
disorder and confusion in the currency." He felt 
sure that the "Bank is the concentrated power of the 



244 ROGER BROOKE TANEY 

whole class of the moneyed aristocracy, who have so 
long struggled to get possession of the government," 
and he was also sure that, "without the aid of paper 
money, the moneyed aristocracy will have no more than 
their fair share of power." A hard money man, Taney 
held that the struggle was one for the victory of paper, 
or of silver and gold. He believed that the "great 
body of the people thought but little on the currency," 
until Jackson's measure called their attention to it. 
The "discussions engendered" thereby will show the 
people how to understand the question, and, "if our 
friends at Washington" stand firm, "the intelligence of 
the people will carry them through. But we have a 
severe contest, and money will be poured out like water 
to accomplish the object of the bank," which had re- 
gained ground through the "worse than folly of our 
friends in Pennsylvania." Taney almost wished that 
he was again with Jackson in Washington, to fight the 
battle out to the end. "A paper currency, in any form, 
or in any shape, should be resisted with inflexible resolu- 
tion." It was absurd to talk about a "sound and 

stable paper currency From the nature 

of man, such currency must always be fluctuating in 
value. Nothing will do as a measure of value, but a 
metallic money, which has of itself real and intrinsic 
value." Formerly, Taney had thought that banks 
might be permitted to issue $20 notes, but experience 
and observation of the Bank of England, had convinced 
him that "there will be no safety short of $50, and per- 
haps $100 would be better. A $50 note is seldom asked 
for, except for the purpose of remittance and exchange." 
If notes were limited to these large ones, merchants 
would "still have the system of credits with each other 
by means of exchange," and would sometimes speculate 



ROGER BROOKE TANEY 245 

and fail, but "their means of gambling at the expense 
of the great body of the people, would be taken away" 
and these merchants could not then, "by breaking the 
banks, where they must always exercise absolute control, 
debase the currency, and, by that means, throw their 
losses upon other people." The "present embarrass- 
ment in government revenues never" would have 
occurred, in Taney's opinion, "if our friends in Con- 
gress, in the deposite law," had adhered to Jackson's 
rules, when "deposites" were first removed from the 
Bank. By their hurry to get hold of the surplus, how- 
ever, they took away the control of the government 
over its own funds, and left them and the currency 
"at the mercy of men who had, for years, been en- 
deavoring to destroy both." In addition to the provi- 
sions for distribution in that bill, there were two other 
fatal ones: (1) their prohibition of "any deposite in a bank 
of more than one fourth of its capital," and (2) a charge 
of interest "on deposites." When Taney left the 
Treasury, there were 20 deposit banks, now there were 
90 and this "vast and ruinous increase was forced" 
on the President by that clause. "When confined to 
a few respectable banks, the government could keep a 
strict supervision over them" and the officers of such 
banks were "anxious to maintain their superior rank 
in the public estimation and to preserve the confidence 
of the government." When Taney wrote, however, the 
"revenue of the nation" had become mixed up with the 
"general rag money currency, feeding and stimulating 
the spirit of speculation in every quarter. The circum- 
stance of being a deposite bank ceased to be an honorary 
distinction." 

Furthermore, as soon as interest was asked, the 
Secretary of the Treasury would no longer require the 



246 ROGER BROOKE TANEY 

banks to keep the deposites in specie, whenever he saw 
that imprudence "was leading them astray." They had 
the "right to make interest by lending out the money. 
It was, truly, no longer a deposite, nor were they 
deposite banks. It was, to all intents and purposes, a 
loan of the public money." The Federal Government 
collected its dues in "hard money," and converted "them 
into paper, and very bad paper, too, by lending to 
banks." The money was put to "hazard for the 
miserable gain of 2 per cent." Jackson had agreed 
with Taney, when the bill passed, but felt the objec- 
tions were not sufficient for him to veto it. "Money 
paid to the government, ought never to be connected 
in any degree with trade or exchange, but to be held by 
the agents .... as a sacred deposite and never 
to be touched except for the purposes for which the 
government is authorized to collect it." 17 

On October 9, 1837, Taney wrote Jackson again from 
Baltimore. He was still living, "quite retired," in 
Baltimore County with his family, and did not expect 
to return to town until driven thither by cold weather, 
for which the house they occupied was not fitted. He 
had not kept in touch with "our leading politicians," 
but was sincerely sorry to find discord among the friends 
of the administration, in regard to the measures called 
for by the "country's exigencies." He was pleased 
with the "manly frankness and ability" of VanBuren's 
message to Congress, as well as with the "soundness of 
its principles." If Congress had followed his advice, 
there would have been no more trouble with the Bank 
of the United States. Taney regretted that Wood- 
bury, the Secretary of the Treasury, had recommended 

17 He blamed Judge White strongly for the enactment of the bill with these 
defects. 



ROGER BROOKE TANEY 247 

the issue of Treasury notes not bearing interest, for these 
would be a "paper currency upon the credit of the 
government, and every paper currency, whether issued 
by the government or by corporations, will run into 
excess sooner or later." Interest bearing notes should 
be issued, which will not circulate as currency. Gold 
and silver could be raised on them. "If the govern- 
ment owes money which it cannot, at this moment, pay, 
it is bound in honesty, like an individual in the same 
situation, to pay interest to its creditors whom it 
compels to wait." Taney did not believe that the 
banks would restore specie payments, unless the im- 
porting merchants were compelled to pay their bonds, 
for banks are "necessarily under the control of the 
merchants." Together with the Bank of the United 
States, he was convinced, that these merchants com- 
pelled the New York banks to suspend specie payments. 
Banks elsewhere cannot resume them, until New York 
ones do so. 

An important election had recently taken place in 
Mayland. Taney wrote: "I, of course, take now no 
active part in election arrangements, further than to 
give my vote. But my friends tell me that there was 
no concerted effort by them to obtain possession of the 
government of the State." In spite of this, since the 
people understand who are the "real authors of the 
present embarrassments of the country," there will be 
16 more "friends of administration" in the next House 
of Delegates than in the last. 18 

After the close of the Circuit Court's term and awaiting 
the assembling of the Supreme Court in January, 1838, 
Taney felt 19 that he could use his intervening leisure in 

18 In this letter Taney requests that Jackson send him a copy of his letter 
to Jackson at the Rip raps in August, 1833. 

19 On December 19, 1837. 



248 ROGER BROOKE TANEY 

no better way than in writing to Jackson to express his 
best wishes for the New Year. Having returned to 
Baltimore with his family, he proposed to write his 
memoirs, so as to show from official documents that his 
conduct in "the removal of the deposites" was "frank 
and decided." 

The generally unfavorable result of the elections, 
showed him that another great struggle was on hand to 
recharter the United States Bank, but in Taney's 
opinion, "if our friends in Washington are judicious, 
I think they can hardly be defeated." He could not 
"entirely approve of the course pursued by our friend, 
Woodbury," as to the Treasury notes, thinking it wrong 
to issue notes at 2 per cent — a nominal interest. "A 
government ought never to pay its creditors in a currency 
below gold or silver, if it has the means of doing other- 
wise. For public confidence is always liable to be shaken 
in the administration, when the public securities are 
depreciated." His opinion was unwavering, that the 
"real public disease is an over abundance of paper 
currency." Treasury notes should have been issued at 
6 per cent interest, and they would have served for in- 
vestment, as well as for exchange, and "would gradually 
have brought specie out." "The more frequently and 
commonly it is seen, the sooner," in Taney's opinion, 
"will confidence be restored to the solvent banks — the 
better able to resume." The public creditors would 
not then have been compelled to accept depreciated 
currency, but Taney had recently seen at the Circuit 
Court, the United States Marshal "paying jurors and 
witnesses summoned by the United States in paper 
trash, as low as halves and quarters." Taney continued 
that "most of the jurymen in the Circuit come from 
the country, and their per diem allowance does not 



ROGER BROOKE TANEY 249 

support them." "Compelled to come against their 
will, they take no pleasure in being paid off in such 
currency, when they know that the merchants receive 
their debentures and Congressmen their per diem in 
gold and silver." Taney concluded the subject with 
the statement that: "I write more of politics to you 
than I usually talk, for I was so long with you and the 
currency during that time so much in our thoughts." 

On April 14, 1838 20 Jackson wrote Taney a long letter, 
in response to a lost one of his, written on December 19, 
1837. Jackson fully appreciated "the talented and 
energetic aid" he received from Taney and Kendall and 
believed that their "firmness of character" and "high 
talent" had made them the target for the "hatred and 
calumny so bitterly displayed against you and myself." 
He agreed with Taney's views that the policy of issuing 
Treasury notes was a bad one and of doubtful con- 
stitutionality. 

Taney wrote Jackson, on May 28, 1838, to express his 
regret that he could not come to the Hermitage during 
the coming summer. 21 He stated that he was kept in 
Maryland by duties as trustee for the settlement and 
distribution of his father's estate. "Nothing so soon 
gets into confusion, or requires more time and patience 
to set to rights again," Taney wrote, "than the accounts 
of a trust estate, in which many are interested. " While 
Taney was a member of the cabinet, nothing had been 
done concerning these matters; but he must take them 

20 Md. Hist. Mag. vol. 4, p. 305. Jackson expressed his hope for a visit 
from Taney. 

21 On May 1, 1838, Taney wrote George Hughes from Washington, to ask 
him to find a place for an unnamed poor young relative of his, whose father 
was dead. The youth had been partly educated at Edinburgh, and possessed 
industry and "the best disposition," although he was not of a "high order of 
intellect." Mss. in N. Y. Public Library. 



250 ROGER BROOKE TANEY 

up as soon as he shall return from Delaware, whither 
he expected to go on the morrow, having concluded the 
sitting of the Circuit Court in Baltimore, on the 26th. 

He hoped to employ his "summer season of leisure" 
in sketching scenes in Washington during the "panic 
year," and had begun to do so in the previous fall; but, 
during the winter, his court duties had been "exceedingly 
laborious." 

He could not refrain from the discussion of politics, 
and was sorry that affairs "go on badly with our friends 
at Washington" and that there existed "a want of 
confidence in the management of the Treasury Depart- 
ment." He did not think that the "stoppage of specie 
payments" hurt the administration and the elections of 
last October in Maryland showed that "our friends" 
were stronger than for many years past, but ground 
had been lost since that time. 

"The greatest harm," came, according to Taney's 
judgment, "from paying out bank notes and depreciated 
treasury notes to the creditors of this government, 
especially to those whose claims arose from burdensome 
duties, such as jurors, witnesses, etc." He repeated his 
belief that Woodbury should have issued notes, bearing 
six per cent interest at first, and soon would have re- 
ceived specie in return for them. People do not like to 
see the Congressmen paid in specie and others in notes 
of banks. Taney hoped that Woodbury would accept 
the position of Chief Justice of New Hampshire, which 
he understood was offered him; "for he is an honest 
man and a good lawyer and will, doubtless make a most 
diligent judge, and I fear he is altogether unfortunate in 
his plans where is now is." 22 

22 Levi Woodbury (1789-1857) succeeded Taney as Secretary of the Treasury 
in 1834. He was appointed to the Supreme Bench in 1845. 



ROGER BROOKE TANEY 251 

After expressing his pleasure that Jackson was again 
well, Taney closed his letter with the remark that: "It 
is one of the most pleasing recollections of my life that 
I was near you in those trying times through which you 
so triumphantly passed." 23 

During the next summer, Taney remained at home, 
and he and his family continued well, "despite continued 
and oppressive heat." Commander Elliott of the Navy 
sent him an alabaster bust of Jackson made at Naples, 
and, naturally, "not an exact likeness." The bust was 
framed in wood from Mount Olivet and from the figure- 
head of the frigate "Constitution," and Taney wrote 
Jackson concerning it, on September 12, 1838. He 
rejoiced in Benton's reelection to the Senate and 
"should almost have despaired of the Republic," if such 
a man "had not been sustained by the people of an 
agricultural State." In large commercial cities, Taney 
yet feared the "money power" as "irresistible," winning 
not only by "open corruption," but also by indirect 
influence; for, when men have families to support and 
know that "they will be employed and enriched by those 
who have the power to distribute wealth," they will 
obey the wishes of the wealthy, rather than "struggle 
with every difficulty." Men "are apt to persuade them- 
selves that the path with the fewest difficulties is the 
best," and to "surrender the lasting blessings of freedom 
and manly independence, for temporary pecuniary 
advantages." The men of Taney's day can not help 
preaching and delivering orations, even to their most 
intimate friends, and the letter continued: "They 
forget the grinding oppression that awaits them from 
the power they are contributing to establish." He 

23 The regrets that he could not come to Tennessee were reiterated by Taney 
in his next letter, sent from Baltimore on September 12, 1838. 



252 ROGER BROOKE TANEY 

really believed in the truth of these over-emphatic 
statements, and thought the prospect a gloomy one, 
since the attempt to "destroy the spirit of freedom" 
would have excited indignation ten years ago, but no 
longer did so. He hoped that the " honest of all parties" 
would, before long, rise "to frown upon it and put it 
down." If the laboring classes become "servile and 
corrupt," the classes which made them such will be the 
first to suffer. 

Grundy's appointment to succeed Butler 24 as Attorney 
General, pleased Taney. He sincerely regretted to 
part from Butler, who had remained in office reluctantly 
for a year, but would have chosen no other successor 
than Grundy. He was also pleased with the appoint- 
ment of Mr. Justice Catron, because of "the strength 
of his judgment, legal knowledge, and high integrity of 
his character. He is a most valuable acquisition to the 
Bench of the Supreme Court." 25 

On January 10, 1839, from Baltimore, Taney next 
wrote Jackson, being about to go to Washington to 
open the term of Court. He hoped to come to the 
Hermitage in the next summer, and regretted to learn 
of the death of Colonel Earle. Benton's "noble and 
manly speech" in Jackson's defence, pleased him. He 
referred again to the "passage of the distribution bill," 
as "hailed with general exaltation by the opposition 
press," which were its "first victims." The administra- 
tion measures would have prevented disaster, had they 
not been counteracted "by the extraordinary infatuation 
which seems to have governed the commercial world." 
Taney never gave up his faith in the correctness of 
Jackson's financial measures. 

24 Felix Grundy succeeded Benjamin F. Butler as Attorney General in 1838. 

25 The letter concluded with a sending of regards by Alice Taney to Mary 
Donelson. So did the letter of August 31, 1839. 



ROGER BROOKE TANEY 253 

In April, 1839, Taney was invited to be present 26 at 
New York on the celebration of the fiftieth anniversary 
of the inauguration of Washington as President, but the 
session of the Circuit Court prevented him from attend- 
ance. Later in the spring, he fell ill, and Mrs. Taney was 
also in "delicate health," so that he remained at home 
throughout the summer, "exercising almost daily by 
short rides on horseback," by which course he re- 
covered his health. He was, therefore, again pre- 
vented from visiting Jackon, to whom he wrote on 
August 31, to express his regret. He sent congratula- 
tions upon the result of the Tennessee elections, having 
not felt so much pleasure over any State election since 
the New York one of 1834, which decided the fate of 
the "panic party." The recent result was another 
proof "that the agricultural portion of the Union may 
be misled for a time," but will soon discover their error 
and do justice to their faithful public servants. From 
the nature of their pursuits, they are more "independent 
of the money power than the people of the commercial 
cities." Jackson's "enemies regarded their former vic- 
tory" in Tennessee "as a personal triumph over you," 
as Taney wrote, "in your own State." 

Taney knew little of "election prospects in Maryland, 
and rarely" saw "any of the active politicians." In 
Baltimore City, the "friends of the administration" 
were "sanguine." The majority in the House of 
Representatives may depend on the Maryland delegation 
and, "when such a stake is to be played for, the opposi- 
tion will put every engine in motion, and money from 
every quarter, if necessary, will find its way to Balti- 
more to control the election." 

26 Tyler, p. 350. 



254 ROGER BROOKE TANEY 

Duane, "anxious to escape from the utter nothing- 
ness into which he has fallen," had published the 
narrative of his incumbency of the Secretaryship of the 
Treasury, and had sent Taney a copy, in the hope, 
probably, that "one of us, or some of our friends, would 
be absurd enough to give it consequence by answering it. 
He seems never to have had elevation of character 
enough to understand his position as a member of 
the cabinet." This rather startling statement, Taney 
sought to justify, by claiming that Duane wrote down 
notes of conversations with Jackon, so as to injure him. 
It was a "new thing for a man to publish to the world 
that, while holding the confidential relation of a cabinet 
minister, .... he was performing the part of 
a spy," so as to furnish Jackson's enemies with weapons." 
The statements of such conversations, on the evidence 
of such a man, Taney held not worthy of much credit. 
His own conversation with Duane was referred to by 
the latter, in a "manner calculated to deceive." 27 
Benton's late speeches, on the other hand, are lauded. 
His services had been great to Jackson and also to Taney, 
when "I was daily assailed in the Senate." Duane's 
book was "such a mass of vanity, folly and malignity, 
and put together in such confusion that it requires some 
time," in Taney's opinion, to "find out what he is 
after and expose his duplicity." Taney wished to know 
whether Jackson's "recollection agreed with his. 

In his letter of November 7, he again congratulated 
Jackson on the Tennessee election. "The great Regu- 
lator 28 too has fallen, and we have lived to see every- 

27 Comments on Duane's book were sent by Taney on November 7, uncopied 
through lack of time. I have not found them. Taney had just returned from 
holding court in Delaware. 

28 The Great Regulator is probably Clay. 



ROGER BROOKE TANEY 255 

thing we said and did, verified and justified." In his 
exultation, Taney proceeded: "What would have hap- 
pened, if the United States money had continued in 
the vaults of the United States Bank! whose conduct" 
had " been the cause of all the convulsions in the country 
since its charter." In his hostility toward such an insti- 
tution, Taney wrote that a Bank of the United States 
will always cause such convulsions, "periodically, to favor 
the speculations of a few individuals and their friends who 
get possession of it." 

Taney enclosed a Maryland election ticket of the 
Democratic party, bearing the emblem of a hickory 
tree, and Jackson's name as a watchword, in similar 
guise to the emblems born on the tickets of that party 
in Maryland, until the abolition of emblems on ballots 
in 1901. 

From the Hermitage on October 10, 1839, Jackson 
answered Taney's letter. His own health was better 
from taking the "Matchless Sanative," a patent medi- 
cine. He regretted that Taney had not as yet visited 
him, but still hoped for such a visit, and would have 
much gratification in a few hours personal conversation 
with Taney. The Tennessee legislature now had a 
"decided Democratic majority in both Branches" and 
"the conduct of Duane, as exposed in his Book, "which 
contained so many positive falsehoods," had destroyed 
him in the estimation of all honorable men" — at least 
in that of Andrew Jackson. 

In the Spring of 1840, Mrs. Taney fell through a trap 
door in a store, and broke her thigh, so that Taney was 
again disappointed in his hopes to visit the Hermitage. 
She suffered greatly, and the splints were not taken off 
until the latter part of August. While she was still 
confined to her room and could not go down stairs, nor 



256 ROGER BROOKE TANEY 

bear much weight upon her leg, Taney wrote Jack- 
son, on September 4, 1840. He had left Baltimore in 
the past season only to hold court in Delaware. 

He criticised Clay's speech at Nashville, a town 
from which it would have been in "better taste" for him 
"to stay away." 29 Clay's attack on the memory of 
Edward Livingston, than whom a "kinder, or more 
amiable man never lived," was "harsh and cruel," 
Livingston's financial troubles in New York came, not 
because he used public money for private purposes, but 
because he was a "victim of kind feelings toward another 
who abused his confidence." At any rate, he paid his 
debts, before he was nominated as Secretary of State. 30 

There should be a "vindication" of Jackson, by "our 
friends at Washington," but Taney thought it would be 
unwise for Kendall to publish Jackson's life yet, since 
it would "be treated as a party publication." Such a 
"work is for posterity" and should await a "calmer 
occasion," when the "great body" of the American 
people of "all parties will be ready to acknowledge how 
well you have deserved the gratitude of your country, 
from your civil as well as your military services." 
The "friends of administration" hoped to carry Mary- 
land, which State was always doubtful. 

Recurring to the currency, Taney wished the "Wash- 
ington friends had felt more strongly the necessity of 
constant exertion on the part of the government to 
restore the circulation of gold and silver and to counter- 
act the efforts of those who are striving to prolong the 
present state of the currency." Salaried officials at 
Washington had been permitted to "sell specie drafts 

29 Clay attacked Jackson's nominations to office as "improper and injurious 
to the public interest," yet Taney thought that he voted to confirm them. 

30 Edward Livingston (1764-1836) had removed to Louisiana in 1804 
because of financial troubles experienced in New York. 



ROGER BROOKE TANEY 257 

given them for their salaries for depreciated paper, 
thus throwing it on the community, in return for specie 
collected for taxes." The government also furnished 
specie in large amounts for export. These practices 
were wrong, in Taney's mind, and should no longer be 
allowed. If clerks could not sell specie drafts, their 
money would be "paid out in small sums to the people" 
and these amounts "would have gone far to restore 
confidence, not only in the District of Columbia, but 
also in the surrounding country, and would have done 
much toward driving out of circulation the miserable 
and fraudulent shinplasters with which the country is 
overrun." Taney was apprehensive that the "advo- 
cates of paper are incessantly on their watch struggling 
against the introduction of specie," and that, unless 
the "officers of government are equally vigilant," the 
"paper party will triumph." 

In November, Harrison, the Whig candidate for the 
Presidency, was elected, and in the following April, 
a month after Taney had administered to him the oath 
of office as President, he died, and Tyler, the Vice 
President, succeeded him. Taney was in Baltimore 
when Harrison died, and the news was at once sent 
him. 31 Mr. Carroll, the Clerk of the Supreme Court on 
April 5, wrote Taney, at the instance of Daniel Webster, 
the Secretary of State, to ask him to be present at the 
funeral, and to "see and confer with" the Cabinet 
"at this most interesting moment." Taney felt that 
the request was not made in a manner which comported 
with the dignity of his august tribunal, and, on the 6th, 
replied that: "I do not suppose I could, with pro- 
priety, come to Washington, unless I am requested to 

31 Tyler, p. 295. 



258 ROGER BROOKE TANEY 

do so by the Cabinet, or by the Vice President, when he 
arrives. It is certainly my sincere wish, as well as my 
duty, to pay every respect to the memory of the Presi- 
dent, and to render every service in my power, in the 
new and painful condition of public affairs." Taney 
did not feel that there was "any disrespect" in omitting 
to give him a "direct invitation from the Cabinet;" yet, 
without such invitation, he was unwilling to come to 
Washington. He also felt that he should not state 
whether his opinion was that Tyler ought to take a new 
oath of office, unless "the communication" from the 
Executive Department to the judicial one were "direct 
and from the proper organ." Taney was not sanguine 
as to Tyler's attitude, and, on April 24, 1841, he wrote 
Jackson that he was surprised to find that many Jack- 
sonians "entertained strong hopes that the elevation 
of Tyler to the Executive Chair would bring back the 
government to the principles upon which you ad- 
ministered it. For Mr. Tyler left you, upon the ground 
that you were not States Rights enough, and at that time, 
he was understood to go to the verge of nullification." 
Did he not say it was a "fanciful notion" that a "citizen 
owes allegiance to the State, but nothing more than 
obedience to the general government?" Taney thought 
it "curious that ultra States Rights men should have 
united with ultras on the other side." As Tyler has 
been associated and brought to power by the latter, 
how can he "be expected to thwart their plans of 
government?" Tyler had been "very prompt in dis- 
tributing the spoils to the victors, and that was not 
exactly according to Virginia doctrine." 

Taney believed that the press was so much under 
the influence of Biddle, who was never long out of his 
mind, that it was not pleasant for newspapers to write 



ROGER BROOKE TANEY 259 

concerning the "startling disclosures" which had been 
made as to the Bank of the United States, and there- 
fore little appeared on that subject. The revelation of 
the "operations of the exchange committee of the Bank," 
afforded "proof of the soundness of the principles upon 
which we determined to remove the deposites." The 
Senate Committee, of which Tyler was chairman at 
that time, in its report, made in December, 1834, "justi- 
fied and, indeed, praised very highly this Executive 
Committee, and reprehended me very sharply for my 
report to the contrary." Tyler's report had scarcely 
been distributed, before the Exchange Committee 
"began to prey upon the money of the Bank without 
stint and without limit." The report had satisfied 
Biddle that there was no danger to him of interruption, 
and he proceeded to use the Bank's money, "as if it had 
been his own." 

Taney feared that another Bank would now be 
"saddled on the country." "Separated as I am from 
all political movements," he told Jackson, "I yet feel, 
when I am writing to you, as if we were again together 
at Washington." He hoped to meet Jackson in 
"another and better world," if not in this life. The 
hopes of the visit to the Hermitage were fading away, 
for Taney had "become, of late, so liable to sudden 
and severe attacks upon my lungs that I can hardly 
expect again to have health enough to justify me in 
venturing upon the journey to visit you." 

Writing on September 30, 1841, Taney told Jackson 
that Tyler "Most agreeably disappointed me." He 
"possesses the utmost firmness, as well as high political 

integrity I am not personally acquainted 

with him" and "did him injustice," having had "no 
confidence in him, because of his report" of 1834, when 



260 ROGER BROOKE TANEY 

Tyler was "deceived." "Advantage was taken of his 
want of acquaintance with the mysteries of banking, 
and, in the heat of a party contest and at the head of a 
party committee, he too readily gave year (sic) to men 
who wanted his name to sanction their dishonest pro- 
ceedings." Taney rejoiced that he had lived long 
enough to see the people "rapidly recovering from the 
delusions under which they were recently laboring, and 
ready again to do justice to those who have defended 
and maintained their true interests." 

The Chief Justice could never get far from one subject 
in these letters, and he now exclaimed: "What a 
scene of iniquity has been disclosed by the fall of that 
Bank!" This iniquity would have been concealed by 
a recharter and had its existence been "extended for 
20 or 30 years and, with additional means, one can 
hardly imagine the ruin which would have followed its 
fall!" The "honest and industrious" will soon, "with 
one voice, acknowledge how much they owe to "Jack- 
son's "courage and firmness and foresight." His "old 
friends" in Maryland were "in spirits" and hoped for 
"success in a hard struggle" to elect a Governor 32 and 
an House of Delegates. "Our State is small and full 
of corporations — some of them gigantic ones — and 
they have flooded the State with irredeemable paper, 
some of it greatly depreciated, and becoming worse 
and worse every day." 

Taney's "own health" was "delicate," and although, 
as he wrote, "when I take care of myself, I get along 
very comfortably, yet I find that I cannot bear much 
exposure." Eight months later, on May 22, 1842, 
Taney wrote again deploring his "own infirm health, 

32 Jackson's "old friend," Francis Thomas, was the Democratic candidate 
for Governor and was elected. 



ROGER BROOKE TANEY 261 

which has prevented me from seeing you once more." 
He "can't stand so long a journey" as to Tennessee 
"in the heats of summer," and at other times, is en- 
gaged in Court, to hold which he expected to go to 
Delaware on the morrow. 

Jackson answered the letter of September 30, 1841, 33 
on November 27. He speaks of his own ill health, 
rejoices over the favorable result of the autumn elec- 
tions, was much pleased with Tyler's course in the 
Presidency, showed great bitterness toward his oppo- 
nents, and now despaired of ever having the pleasure 
of conversing with Taney, because of the latter's 
"arduous duties and the care necessary to preserve 
his health and useful life." 

Jackson's ill health, his disappointment at failing 
to meet Taney again, and his hope to have that meeting 
"in a happier clime" are the themes of his letter of 
June 15, 1842, the last one found, which was an answer 
to Taney's letter of May 22. 34 

Although "withdrawn from political movements," 
the Maryland election of 1842 gave Taney "no small 
pleasure," as he wrote Jackson on October 24, rejoicing 
to see the "delusions of '40" pass away. He was even 
happier over the results in Pennsylvania and Ohio, 
because they were more important, and because, in 
Ohio, "the miserable and disgraceful buffoonery of 
coonskins and hard cider was again revived" by Clay. 
After these elections, there was no longer any danger 
of a new "great National Bank" to "govern the country 
by corruption and to enrich its favorites, at the expense 
of the industrious and unsuspecting classes of society." 
Tyler was "entitled to high praise for the firmness 

33 4 Md. Hist. Mag. 311. 

34 4 Md. Hist. Mag. 313. 



262 ROGER BROOKE TANEY 

with which he had resisted the violent efforts to force" 
a Bank upon the people. Yet Taney wondered that 
Tyler could not see that the "source of evil lies deeper" 
in a "paper currency." A "National Bank is nothing 
more or less than the worst possible form in which a 
paper currency can be established." Taney believed 
that "the paper money scheme of President Tyler is 
nearly as bad as a bank," but the bill embodying it can 
be repealed at any time. If the government issue paper 
money, it will soon become an "instrument of corrup- 
tion and injustice and involve the country again in 

all the madness of speculation The idea of 

paper, always convertible into gold and silver, is a mere 
fallacy." No government would incur the "expense 
of issuing paper, and paying clerks to keep an account 
of it," if it was not possible to "have more paper out 
than they had specie on hand." Paper was not of 
"superior convenience," to Taney's mind, and "no 
traveller ever felt himself discomforted by 10 or a dozen 
half eagles in his pocket." Larger sums could be 
supplied by "bills, founded on the ordinary operations 
of commerce, between distant places." The plan 
adopted by Jackson, when the "deposites were re- 
moved," was the only safe one — "to prohibit the circu- 
lation of small notes." 35 Jackson, by his "courage and 
foresight, laid the foundations" of the necessary re- 
form, "under the most trying circumstances, by over- 
throwing the gigantic corporation that would per- 
petuate the evil. 36 

55 Taney again wrote that he formerly thought that a $20 note might 
be issued, but now he put the limit at $50, of course making the alteration 
gradually. 

30 Taney again enclosed an election ticket, as a proof of the appreciation of 
Jackson by the people, and stated that his family have been ill, but are now well. 



ROGER BROOKE TANEY 263 

Writing on April 28, 1843, Taney stated that he was 
pleased to learn of Jackson's popularity in Louisiana. 
"Whatever 37 the corrupt influences of the Bank and 
paper money might accomplish in other places, by 
continually misrepresenting you, .... it has 
always seemed to me impossible that they could have 
kept alive so rancorous an opposition" to Jackson "in a 
city and State which owed so much to him," because of 
his victory at New Orleans over the British in 1814. 38 

Although he had been several years on the Bench of the 
Circuit in which Virginia was included, Taney did not 
hold court in Richmond until May, 1843, at which 
time 39 he was elected an honorary member of the Quoit 
Club at Buchanan's Spring, of which club Chief Justice 
Marshall had been a frequenter. Taney's health "gave 
way a good deal" about that time, so that he had to 
spend part of the summer at a sulphur spring, near 
Winchester, Virginia. In the autumn, he was better, 
and wrote Jackson on October 14, anew regretting that 
he could not come to Tennessee. 

Retired, as he wrote that he had been, "from any 
active concern in political affairs since I have been on 
the Bench," he was surprised that the elections in 
Maryland went "against us." For months past, how- 
ever, "our prominent men" had been "beating down 
rivals in their own ranks" and the result was "the 
destruction of the party." Remembering Jackson's 
"unshaken confidence in the virtue and intelligence of 
the people," Taney trusted the future might be better, 40 

37 Jackson and Kendall asked Taney to prepare notes on his cabinet experi- 
ences for the latter's life of the former, and Taney promised to do so. 

38 Francis Scott Key had died, and Mrs. Taney had suffered so much from 
her brother's death as to "impair her health seriously." 

39 Tyler, p. 325. On his return — vide letter to Jackson of Jan. 4, 1844, he 
visited the Norfolk Navy Yard and saw the frigate Constitution. 

40 He remembered "many acts of kindness and friendship" from Jackson. 



264 ROGER BROOKE TANEY 

but could not avoid the foreboding that another Bank 
may come, since "paper money and its necessary con- 
sequences, i.e., speculation and the desire of growing 
rich suddenly without labor, have made fearful inroads 
upon the patriotism and public spirit of what are called 
the higher classes of society." 

On January 4, 1844, he sent New Year's wishes to 
Jackson, and expressed pleasure that the fall elections 
were better. "Our friends" seem to "feel the necessity 
of healing their divisions .... to meet the 
common enemy." 41 

After Polk was elected to the Presidency, Taney wrote 
Jackson, on November 20, 1844, to congratulate him, 
and hopefully said: "the spirit of '28 and '32 was again 
abroad in this election, and has signally triumphed and 
the country will now have peace for many years. For 
the dangerous and evil influences," which united for 
Clay, will not do so for another. He would administer 
the oath of office to Polk with pleasure, and thanked God 
that Jackson had "lived to witness this great triumph." 
On January 1, 1845, from Washington, Taney sent his 
last letter to his former chief, to "Wish you, according 
to our good old Maryland custom, a happy New Year, 
and many returns of it. The day never passes without 
my thinking of you and your many kindnesses to me." 42 
Since he had been on the bench, Taney had "abstained 
from taking part in political movements, but the sincere 

41 He hoped that the Democratic Presidential Convention in the spring 
would be unanimous, and referred to the "most unjustly imposed" fine on Jack- 
son by Judge Hall, as a surprising proof of "how far party spirit blinds men." 
He also deplored Dr. Linn's death. 

42 Jackson was even more than usual in Taney's thoughts on that day, for 
he had gone to the "Presidential Mansion" and had just received a call from 
Major Lewis, who showed him in confidence a letter from Jackson which rejoiced 
Taney. 



ROGER BROOKE TANEY 265 

regard I entertain for Mr. Polk and the trying times 
through which he and I passed together, made it more 
difficult for me to remain quiet, when he and Mr. Clay 
were opposing candidates." Taney had hoped that 
Calhoun would retire from the Cabinet, at the end of 
Tyler's term of office; but, as Jackson always said of 
Calhoun, "with all his talents, he had no judgment." 
If he "does not retire, Polk's first act, in asking him to 
do so, will require firmness, or his administration will 
be a failure. None of his cabinet officers should be a 
candidate for the Presidency. If Calhoun be retained, 
the Administration, in less than 12 months, will find it- 
self in a minority of its own party." Taney thought 
that the rest of the cabinet might continue in office and 
he would retain at least Wilkins, Mason and Wickliffe, 43 
who possessed "great ability." Polk was a "statesman," 
but could not carry on "the government successfully," 
unless he followed Jackson's example, heard everything 
and then decided for himself. Jackson was not destined 
to even one more year of life, for he died on June 8, 
1845. 44 Taney was invited to attend memorial services 
held in New York, and replied, declining the invitation, 
and giving this estimate of the dead man : 

The whole civilized world 45 already know; how bountifully he 
was endowed by Providence with those high gifts which qualified 

43 These members of the Cabinet were William Wilkins of Pennsylvania, 
John Y. Mason of Virginia and Charles A. Wickliffe of Kentucky. 

44 An unaddressed letter, written by Taney (Mss. N. Y. Public Library) 
dated August 27, 1845, at Jordan's Springs, states that he cannot order an 
"original paper," out of the keeping of the Supreme Court, but that the Court 
alone can issue such an order. 

45 Parton's Life of Jackson, III, p. 680. When Jackson died, Taney presided 
at a meeting in Baltimore on Nov. 9, 1845, at which it was resolved to erect 
a monument to Jackson in Baltimore and Taney was chosen president of the 
association. The plan was unsuccessful. 



266 ROGER BROOKE TANEY 

him to lead, both as a soldier and a statesman. But only those 
who were around him in times of anxious deliberation, when great 
and mighty interests were at stake and who were with him also in 
the retired scenes of domestic life, in the midst of his family and 
friends, can fully appreciate his innate love of justice, his hatred of 
oppression in every shape it would assume, his magnanimity, his 
entire freedom from any feeling of personal hostility to his political 
opponents and his constant and unswerving kindness and gentle- 
ness to his friends. 



CHAPTER XI 
The Period of the "Genesee Chief" (1846-1856) 

In 1847, the Supreme Court decided the so-called 
License Cases, 1 ably argued by Webster, Rufus Choate, 
John Davis and John P. Hale. The decision was a 
curious one, for the judges could not agree upon the 
reasoning and seven of the nine justices filed opinions. 
The Court was unanimous to the effect that a State can 
constitutionally regulate, or prohibit the sale of wines 
or spirits which the Federal law has authorized to be 
imported from other countries. To put the matter in 
another aspect, 2 a majority of the justices held that the 
Congressional power in this matter was not exclusive. 3 
Taney seized the true distinction in his opinion, when 
he maintained that, if the Statutes had obstructed the 
importation of the liquor, or had prevented its sale in 
the original cask in the importer's hands, they would 
have conflicted with the Congressional power; but the 
laws did not so conflict, because they were intended to act 
upon the liquor, after it had passed the line of foreign 
commerce and had become a part of the general prop- 
erty of the State. 4 

The law of Congress is the supreme law and "must 
prevail over the law of the State in conflict with it." 

1 5 Howard, 504, Thurlow v. Mass., Fletcher v. R. I., Pierce v. N. H. 

2 In his opinion in the Passenger Cases. 

9 The New Hampshire case had slightly different facts, as we shall see, but 
all the cases involved prohibition laws of the New England States. 

« Tyler, p. 297. The original package decision, Leisy v. Hardin, 135 U. S. 

100, overruled the case of Pierce v. New Hampshire. Mickell, "Great Am. 

Lawyers," IV, 131, praises Taney's opinion, which is "so carefully thought 

out, and is so charming in exposition that it irresistibly compels the mind to 

its conclusions." 

267 



268 ROGER BROOKE TANEY 

Beyond the limits of the Federal Constitution, the States 
retain their power over trade and commerce and each 
State "may regulate its own internal traffic, according 
to its own judgment and upon its own views of the in- 
terest and well being of its citizens." The difficulty 
lies in the application of these principles. "How far 
may a State regulate, or prohibit, the sale of ardent 
spirits, the importation of which from foreign countries 
has been authorized by Congress?" Taney, like many 
another judge, found it "no easy task to mark out by 
certain and definite line, the division between foreign 
and domestic commerce, and to fix the precise point in 
relation to every important article, where the paramount 
power of Congress terminates and that of the State 
begins." The Constitution did not draw that line, so 
it was necessary for judicial decision to be made there- 
upon. The first case upon this subject was Brown v. 
Maryland, in which it was virtually decided that, when 
the original package was broken up, the State law 
attached to the goods. Taney then made the following 
confession : 

I argued the case in behalf of the State and endeavored to main- 
tain that the law of Maryland, which required the importer, as 
well as other dealers, to take out a license, before he could sell, 
and for which he was to pay a certain sum to the State, was valid 
and constitutional and, certainly, I at that time, persuaded myself 
that I was right and thought the decision of the Court restricted the 
powers of the State, more than a sound construction of the Consti- 
tution of the United States would warrant. But further and more 
mature reflection has convinced me that the rule laid down by the 
Supreme Court is a just and safe one; and perhaps the best that 
could have been adopted, for preserving the right of the United 
States, on the one hand, and of the States, on the other, and pre- 
venting collision between them. The question, I have already 
said, was a very difficult one for the judicial mind. 



ROGER BROOKE TANEY 269 

Taney did not see how the line could be "drawn more 
accurately, and correctly, or more in harmony with the 
obvious intention and object of this provision in the 
Constitution." While goods remain in the hands of 
the importer, they may be considered as in transitu and, 
consequently, a state tax on them would be "hardly 
more justifiable than a transit duty upon the merchan- 
dise, when passing through a State." "A tax in any 
shape upon imports," Taney continued, "is a tax on 
the consumer, by enhancing the price," and a State 
must not raise a revenue "for the support of its own 
government, from citizens of other States," either by 
a duty on imports, or indirectly. Otherwise, a State 
could "defeat one of the principal objects of forming 
and adopting the Constitution. " A tax on the property 
of the importer is very different from a tax upon the 
thing imported. 

Liquor is not to be kept out of the community as 
pestilence or pauperism should be; for these are not 
subjects of commerce, "not things to be regulated and 
trafficked in, but to be prevented." "Spirits and dis- 
tilled liquors are universally admitted to be subjects 
of ownership and property and are, therefore, subjects 
of exchange, barter, and traffic, like any other com- 
modity in which a right of property exists." Congress, 
consequently, has the power to "admit or not, as it 
shall seem best, the importation of ardent spirits," 
and no State may prohibit their introduction. The 
laws of Massachusetts and Rhode Island, however, 
"act altogether upon the retail or domestic traffic 
within their respective borders," and act on the article, 
"after it has become a part of the general mass of the 
property in the state." 



270 ROGER BROOKE TANEY 

Though a State is bound to receive and to permit the sale by 
the importer of any article of merchandise which Congress author- 
ized to be imported, it is not bound to furnish a market for it, 
nor to abstain from the passage of any law which it may deem 
necessary, or advisable, to guard the health, or morals of its 
citizens, although such a law may discourage importation, or 
diminish the profits, of the importer, or lessen the revenue of the 
general government. And if any State deems the retail traffic in 
ardent spirits injurious to its citizens and calculated to produce 
idleness, vice, or debauchery, I see nothing in the Constitution of 
the United States to prevent it from regulating and restraining the 
traffic, or from prohibiting it altogether, if it thinks proper. 

The New Hampshire case was based on a different 
principle from the other two. The plaintiffs bought a 
barrel of gin in Boston, brought it to Dover and sold it 
in the cask in which it had been imported, without the 
license of the Selectmen of the town, as required by the 
State law. The case differed from Brown v. Maryland, 
in that it arose out of commerce between two States, as 
to a matter in regard to which Congress had not exercised 
its power. The article had not passed beyond the limits 
of interstate commerce and the regulation acted upon it, 
"while it is within the admitted jurisdiction of the 
general government and subject to its control and reg- 
ulation. " The question, then, was whether a State might 
make regulations of such commerce, which do not come 
into conflict with the laws of Congress, or whether the 
grant to Congress was "of itself a prohibition to the 
States," rendering their laws on the subject void. To 
Taney, it appeared "to be very clear that the mere 
grant of power to the general government cannot, upon 
any just principles of construction, be construed to be 
an absolute prohibition to the exercise of any power 
over the same subject of the State. . . . „. The 



ROGER BROOKE TANEY 271 

State may .... for the safety, or convenience, 
of trade, or for the protection of the health of its citizens, 
make regulations of commerce for its own ports and 
harbors and for its own territory and such regulations 
are valid, unless they come in conflict with a law of 
Congress." There is no prohibition to the making of 
such regulations by the States, in the language of the 
grant to Congress, nor can such prohibition be inferred, 
by comparing the provision on this subject with those 
that relate to other powers granted; for, in many in- 
stances, after a grant to the United States, the Constitu- 
tion proceeds to prohibit the exercise of the same power 
by the States. If it was "intended to prohibit the 
States from making any regulations of commerce, it is 
difficult to account for the omission" of a prohibition. 

"If the framers of the Constitution (knowing that a 
multitude of minor regulations must be necessary, which 
Congress amid its great concerns could never find time 
to consider and provide) intended merely to make the 
power of the Federal Government supreme upon this 
subject over the States, then the omission of any pro- 
hibition is accounted for and is consistent with the 
whole instrument." If the mere grant of the power 
over commerce to the United States was in itself a 
prohibition to the States, there would be no necessity 
of providing for the supremacy of Congress, as all State 
laws would be ipso facto void and there could be no 
conflicting legislation. "Only where both can legislate 
on the subject" can the question arise. Furthermore, 
the practice of the Federal government, in regard to 
pilotage laws, had conformed, in Taney's view, to this 
theory. 

Pilotage is a subject, "admitted on all hands to belong 
to foreign commerce," and subject, therefore, to the 



272 ROGER BROOKE TANEY 

regulations of Congress, yet it is "continually regulated 
by the maritime States, as fully and entirely, since the 
adoption of the constitution, as before." The only law 
of Congress was passed as late as 1837 and was intended 
only to modify one provision of the New York law. The 
Federal act of 1789, providing that pilotage should con- 
tinue to be regulated by the laws of the States, then in 
force or hereafter passed by them until Congress should 
make some other provision, would not have been con- 
stitutional, if the grant to Congress had involved a 
prohibition to the States, yet the validity of the law 
had never been questioned. 

So also health and quarantine regulations are, nec- 
essarily, in some degree regulations of foreign commerce, 
yet they are upheld as valid. Taney considered that 
the proper construction of the whole decision in the case 
of Gibons v. Ogden supported his view. The police 
powers "are nothing more nor less than the powers of 
government, inherent in every sovereignty to the extent 
of its dominions." "By virtue of this power of sov- 
ereignty, a State legislates," and "its authority to make 
regulations of commerce is as absolute as its power to 
pass health laws," except in so far as it has been re- 
stricted by the Constitution of the United States. 

In this view of the matter, the objects and motive 
of the State are of no importance, for the question is one 
of power. If States cannot make regulations of foreign 
commerce, such regulations are void, whatever may 
be their real object, and no Congressional action is 
needed to control them. Gibbons v. Ogden said that 
such regulations could be made by a State, subject to 
such control. 5 Consequently the grant to "the Federal 
government is not an absolute and entire prohibition 

6 Gibbons v. Ogden, 9 Wheaton 1. 



ROGER BROOKE TANEY 273 

to the States; but merely confers upon Congress the 
superior and controlling power. 6 Congress had made 
no regulation here, so New Hampshire might lawfully 
regulate the traffic in liquor, "as soon as it is landed in 
its territory." 7 

The relation of States to the Nation was also con- 
sidered by Taney at this term, in the case of Cook v. 
Curtis. 8 He stated that he had tried the case in the 
Court below and had rendered such a decision as that 
from which appeal had been taken; because, "sitting 
as an inferior tribunal," he felt bound by the prior 
decisions of the Supreme Court, though he could "not 
assent to the correctness of the reasoning" on which 
they were founded. Now, his opinion was that the 
judgment in the Circuit Court ought to be affirmed, 
according to the decisions heretofore given, because the 
majority of the justices had determined not to consider 
the question as to the operation of State insolvent laws, 
an open one. "But in my opinion," Taney continued, 
"these decisions are not in harmony with some of the 
principles adopted and sanctioned by this Court and, 
therefore, ought not to be followed." Ogden v. 
Saunders 9 was wrong in saying that there was a collision 

6 Taney also appealed to Marshall's opinion in Wilson v. Blackbird Marsh 
Co., 2 Peters, 245. 

7 Taney uses this interesting sentence as to the construction of opinions: 
"In referring to the opinions of those who sat here before us, it is but justice 
to them, in expounding their language, to keep in mind the character of the case 
they were deciding. This is more especially necessary, in cases depending 
upon the construction of the Constitution of the United States, where, from 
the great public interests which must always be involved in such questions, the 
Court have usually deemed it advisable to state, very much at large, the 
principles and reasoning, upon which their judgment was made, by the counsel 
on either side in the argument." Biddle, Const. Hist., p. 165, speaks of Taney's 
opinion as a "calm, just, and (in my opinion), convincing presentation of the 
entire subject." 

8 5 Howard 295. 

9 Ogden v. Saunders, 12 Wheaton 213. 



274 . ROGER BROOKE TANEY 

between the United States and a State, when the latter 
passes beyond its own limits and the rights of its citizens 
and acts on the citizens of other States. How can the 
State laws "pass beyond" the State's limits except by 
comity? and, within those limits, Taney maintained, 
they should be binding on the Federal Courts, as well 
on those of the State itself. 10 

The question as to whether damages were due the 
Bank of the United States from the protest of the bill 
of exchange on France was decided in favor of the United 
States at this term. Taney withdrew from the bench 
during the argument, because he had given an opinion 
upon the matter, while he was Attorney General, but 
stated that the concurred with the Court's opinion. 11 

In Sheppard v. Wilson 12 Taney and the Court re- 
frained from pronouncing an opinion, until Congress 
had the opportunity to pass an act to supply the omis- 
sion of previous legislation as to appeals from territorial 
courts, and, in Rowan v. Runnells 13 he refused to reverse 
a decision of a Federal Court declaring a contract valid, 
though, subsequently, the highest Court of the State, 
where the contract was made and was to be performed, 
decided a similar contract 14 to be invalid, because it was 
prohibited by the State Constitution. He remarked 
that, "undoubtedly, this Court will always feel itself 
bound to respect the decisions of the State Courts and, 
from the time they are made, will regard them as con- 

10 The court's decision was that the insolvent law of Maryland could not 
discharge a man from a New York debt. Taney refers to Story's "Conflict 
of Laws," in which volume decisions are "collected together, and arranged, and 
commented on, with the usual learning and ability of that distinguished jurist." 

11 Catron wrote it. Wayne and McLean dissented. U. S. v. Bank of 
U. S., 5 Howard 393. 

12 5 Howard 210. 
« 5 Howard 134. 

14 One for the sale of slaves. 



ROGER BROOKE TANEY 275 

elusive, in all cases, upon the construction of their own 
Constitution and laws. But we ought not to give to 
them a retroactive effect, or the provision which secures 
to a citizen of one State a right to sue those of another 
might become utterly useless." 15 

In Cook v. Moffatt, he filed a concurring opinion as 
to the interpretation of the bankruptcy clause of the 
Constitution, stating that it was dangerous to infer a 
power in the United States government merely from the 
general powers of the government and the grant to it 
of judicial power. 16 

In the next term, Taney delivered no important 
opinions 17 but, at the term covering the winter of 

"Minor decisions at this term were: (1) procedure on writs of Error, 
Pepper v. Dunlap, 5 Howard 5 1 ; Barry v. Mercein, 5 Howard 117; Mayberry v. 
Thompson, 5 Howard 121; Miner's Bank v. U. S., 5 Howard 213; (2) pro- 
cedure in Appeal, U. S. v. Briggs, 5 Howard 208; (3) Pleading (Corporation may 
refer cause to arbitrators), Alexandria Canal Co. v. Swann, 5 Howard 83; 
(4) Protested bill, Hildeburn v. Turner, 5 Howard 69; (5) Patent (too vague 
composition), Wood v. Underbill 5 Howard 1. 

16 Cook v. Moffat, 5 Howard 295, 1847. Insolvent laws, Tyler, 285. Biddle, 
Const. Hist., 164, calls Taney's views "obviously correct." 

"Minor opinions are upon procedure. (1) writ of error, Van Ness v. 
Van Ness, 6 Howard 62; and Nesmith v. Sheldon, 6 Howard 41; (2) Villalobos 
v. U. S., 6 Howard 81 (land claims in Florida); (3) De Armas's Heirs v. U. S., 
6 Howard, 103 (Spanish land title in Florida) ; (4) U. S. v. Curey, 6 Howard, 
106 (procedure in Appeal); (5) Perkins v. Fonwright, 6 Howard, 206 (Final 
decree); (6) Forgav v. Conrad, 6 Howard 201 (Defendants in Equity case 
whose interests are separate may appeal separately; (7) Bank of Metropolis 
v. N. E. Bank, 6 Howard 212 (Explains 1 Howard 234); (8) Bein v. Heath, 
6 Howard 228 (Dissents, no opinion. Husband suing for wife in equity); 
(9) Planter's Bank v. Sharp, 6 Howard 301 (Dissents, no opinion. Obligation 
in law of contract prohibiting a bank from transferring by endorsement any 
note); (10) Hogg v. Emerson, 6 Howard, 437 (Patent, dissents, no opinion); 

(11) Houston v. City Bank of New Orleans, 6 Howard 486 (Bankrupt act); 

(12) U. S. v. Yates, 6 Howard 605 (Dismissal of case and appearance of counsel); 

(13) N. J. Steam Nav. Co. v. Merchant's Bank of Boston, 6 Howard 344 
(Concurs with majority. Express between New York and Providence); 

(14) Sims v. Hundley, 6 Howard 1, (Groves v. Slaughter to be followed— notes 
given in payment for slaves— Rules of evidence prescribed by State law to be 



276 ROGER BROOKE TANEY 

1848-1849, we find one of the most important decisions 
from his hand. 18 On the face of the action, it was 
simply one for breaking and entering a house; but the 
whole question of the so-called Dorr rebellion in Rhode 
Island against the old Colonial Charter was involved. 
Martin Luther sued Luther M. Borden, who justified 
himself on the ground that large bodies of men assem- 
bled in different parts of the State for the purpose of 
overthrowing the government by military force and 
were levying war on the State. The State had been 
declared under martial law, in consequence of this, by 
the Governor under the charter. Luther was one of the 
insurrectionists, whom Dorr had arrested, and Borden 
was a military officer, who, in obedience to the command 
of his superior officer, broke into Luther's house to 
search for and arrest him. Luther replied to Borden's 
justification that he was guilty of trespass of his own 
proper wrong. Taney approached this important issue 
with caution. The Constitution of the United States, 
"as far as it has provided for an emergency of this kind 
and has authorized the general government to interfere 
in the domestic concerns of a State, has treated the 
subject as political in its nature and placed the power 
in the hands of that department" of the government. 
"A republican form of government" had been guaran- 
teed to each State. Under this guarantee 

It rests with Congress to decide what government is the estab- 
lished one in a State. For, as the United States guarantees to each 
State a republican government, Congress must necessarily decide 

followed by United States Circuit Courts sitting in these States); (15) Gwin 
v. Yerger, 6 Howard 7 (A' state law providing for summary process against a 
Sheriff for the recovery of money levied by him, may be adopted by a Cireuit 
Court, as to its marshal, but not as to his sureties) . 
18 Luther v. Borden, 7 Howard 1, Tyler 301. 



ROGER BROOKE TANEY 277 

what government is established in the State, before it can deter- 
mine whether it is republican or not. And when the Senators and 
Representatives of a State are admitted into the councils of the 
Union, the authority of the government, under which they are 
appointed, as well as its republican character, is recognized by the 
proper constitutional authority. And its decision is binding on 
every other department of the government, and could not be 
questioned in a judicial tribunal. 

The dispute occurred in Rhode Island in 1842 and 
did not last long enough to bring the question to an 
issue then, but "the right to decide is placed" in Con- 
gress and "not in the Courts. " It rested with Congress 
to determine upon the means proper to be adopted to 
quell domestic violence and so to fulfil this guarantee. 
Congress might, if they had deemed it most advisable 
to do so, have placed it in the power of a Court to decide 
when the contingency had happened, which required 
the Federal government to interfere; but Congress 
had 19 vested "the power of deciding whether the exigency 
had arisen, upon which the government of the United 
States is bound to interfere," in the President. An 
"armed conflict" is clearly a case of "domestic violence" 
and "one of the parties must be in insurrection against 
the lawful government. And the President must, of 
necessity, decide which is the government and which 
party is unlawfully arrayed against it, before he can 
perform the duty imposed upon him by the Act of 
Congress." The Court may not inquire during nor 
after the insurrection as to whether the President's 
decision is right. The President, on the application of 
the Governor claiming under the charter, recognized 
him as the executive power of the State and was ready 
to* call out the militia. A knowledge of this decision 



u 



By the Act of February 28, 1795. 



278 ROGER BROOKE TANEY 

put an end to the armed opposition and was "as 
effectual, as if the militia had been assembled under his 
orders." Taney continued: 

It is said that this power in the President is dangerous to liberty 
and may be abused. All power may be abused, if placed in un- 
worthy hands. But it would be difficult, we think, to point out 
any other hands, in which this power would be more safe and, at 
the same time, equally effectual. When citizens of the same 
State are in arms against each other, and the constituted authori- 
ties are unable to execute the laws, the interposition of the United 
States must be prompt, or it is of little value. The ordinary 
course of proceedings in courts of justice would be utterly unfit for 
the crisis. And the elevated office of the President, chosen as he is 
by the people of the United States, and the high responsibility he 
could not fail to feel, when acting in a case of so much moment, 
appear to furnish as strong safeguards against a wilful abuse of 
power, as human precedence and foresight could well provide. 

Taney recognized that "the President, in exercising 
this power," might "fall into error, or invade the rights 
of the people of the State" "and believed that it would 
then be in the power of Congress, to apply the proper 
remedy. But the courts must administer the law, as 
they find it." 

The high power has been conferred upon this Court, of passing 
judgment upon the acts of the State sovereignties and of the 
legislative and executive branches of the Federal government and 
of determining whether they are beyond the limits of power 
marked out for them respectively by the Constitution of the 
United States. This tribunal, therefore, should be the last to 
overstep the boundaries which limit its own jurisdiction. And 
while it should always be ready to meet any question confided to it 
by the Constitution, it is equally its duty not to pass beyond its 
appropriate sphere of action and to take care not to involve itself in 
discussions which properly belong to other forums. No one, we 



ROGER BROOKE TANEY 279 

believe, has ever doubted the proposition that, according to the 
institutions of the country, the sovereignty in every State resides 
in the people of the State and that they may alter and change their 
form of government at their own pleasure. But, whether they 
have changed it or not, by abolishing an old government and 
establishing a new one in its place, is a question to be settled 
by the political power. 

And when that power has decided, "the courts are 
bound to take notice of its decision and to follow it." 

In the days of reconstruction of the seceded States of 
the South, the question involved in this case gave rise 
to the dispute between the Presidential plan of recon- 
struction, advocated by Presidents Lincoln and Johnson 
and the Congressional plan of reconstruction, as em- 
bodied in the Davis-Wade bill and in the measures 
promoted by Charles Sumner and Thaddeus Stevens. 
The Supreme Court did not pass upon the subject, in its 
fullness, at the time, 20 but in a recent decision has firmly 
placed itself on the ground of Taney's decision in Luther 
v. Borden and has said that it is a legislative duty to 
determine the political questions involved in deciding 
whether a State government republican in form exists. 21 

At this term, also were decided that group of actions 
commonly known as the Passenger Cases. 22 The Court 
was sadly divided. 23 

20 See Texas v. White. 7 Wall 780. 

21 Kernan v. City of Portland, 223 U. S. Reports, 118 at 151. See Steiner's 
Life of Henry Winter Davis, p. 286. 

22 Tyler, p. 299. Smith v. Turner, etc., 7 Howard 283. Taney's dissent 
extends from 464 to 494. Mi<|kell, as usual, takes an enthusiastically favorable 
view of the opinion, and ("4 Gt. Am. Lawyers," p. 139) speaks of it as "unsur- 
passed for closeness of reasoning and nicety of discrimination between the 
relative power of State and Federal Governments." 

23 A reviewer of Carson's "Supreme Court" in the Nation for April 7, 1892, 
at p. 269, speaks of "this lamentable, if not shameful, exhibition of judicial 
discord;" but he is an unfriendly critic, for he characterizes this whole period 



280 ROGER BROOKE TANEY 

The States of New York and Massachusetts had 
passed laws, requiring a master of a vessel engaged in 
foreign commerce to pay a certain sum to a State 
officer for each passenger brought in from a foreign 
country and the Court's decision was to the effect that 
the law was inoperative, because it conflicted with the 
Constitution. 

Taney dissented from this judgment. His view is 
far narrower than that of later legal opinion and shows 
that he had not yet outgrown his strict construction of 
the commerce clause, gained when he was counsel in 
Brown v. Maryland. He thought no argument was 
needed to "show that the power over the intercourse of 
persons passing from one State to another is not with 
Congress" and, if Congress had not that power, neither 
had it the power over passengers from foreign countries. 
Federal power over intercourse with foreign countries 
was, exclusively, with their governments and public 
authorities, and had no connection with. private persons. 
The State law met the vessel after she had arrived in 
the harbor and within the territorial limits of the State ; 
but while the passengers were still afloat, in navigable 
water. The Statute of Massachusetts was a part of the 
pauper laws of the State and the payments were placed 
in a fund to support alien paupers. The payment was 
"the condition, upon which the State permits the alien 
passengers to come on shore and mingle with its citizens 
and reside among them." The money was demanded of 
the Captain, for the sake of convenience, but the burden 
really fell on the passenger, who paid more for the voyage 

as one, in which the judges were "struggling awkwardly" to reconcile the "new 
perceptions that the Constitutional canons of construction established before 
1835 were vitally essential to the preservation of national authority" with 
"their earlier political training upon State's rights and strict construction" — a 
reconciliation surely not necessary for such a Federalist as Taney. 



ROGER BROOKE TANEY 281 

because of this tax. By no treaty or act, has Congress 
"required the States to receive and suffer to remain" 
within their borders every person, " whom it may be the 
pleasure of the United States to admit." It is a funda- 
mental question, whether Congress may lawfully ex- 
ercise such power, or whether the Court must treat any 
such act as an usurpation of power and, neither recognize, 
nor enforce it. The Court had decided 24 that a State 
may remove from among its citizens any persons it 
wishes. If so, it follows that it may refuse them 
entrance — it would be useless to admit them and then 
expel them forthwith. The power cannot, to Taney's 
mind, be a concurrent one; but must be exclusive — 
"paramount and absolute in the sovereignty which 
possesses it" — or "disorder and confusion" would 
result. The power must be discretionary, and the 
necessity of the law is not before the Court, though it 
would be easy to show from history that Massachusetts 
is wise in taking steps against pauper immigrants. If 
the State has the right to admit persons, the Court 
cannot supervise the placing "such securities and con- 
ditions," as the State saw fit, upon that admission. As 
Congress has passed no Act, does that silence, following 
the decision in the License Cases, mean that there may 
be free ingress of persons? This is not a regulation of 
vessels. Massachusetts asked a security from one class 
of aliens and took a sum of money from those less 
chargeable. Taney did not believe that "the over- 
whelming power" of deciding who should be permitted 
to reside in a State was vested in Congress. He could 
not keep slavery out of the discussion and pointed out 
that, under such a power, emancipated slaves from the 
West Indies might be granted the right to reside through- 

24 Groves v. Slaughter, 15 Peters 449; Prigg v. Pa.,16 Pet. 539 



282 ROGER BROOKE TANEY 

out the Southern States, in spite of any State law, thus 
inevitably producing the most serious discontent and, 
ultimately leading to the most painful consequences. 
The power to prohibit the foreign slave trade does not 
carry the power to force the State to admit any one, or 
the State would be subject, as to "its domestic concerns 
and social relations, to the power of the Federal 
government." 

Passengers are not imports, 25 for that word covers 
only articles of property. The clauses in the Constitu- 
tion granting Congress the powers to tax and to regulate 
commerce are distinct and separately placed. This 
levy is not a tax on the Captain, any more than import 
duties on merchandise in his vessel are. Taney feared 
that the regulation of commerce might be so used as to 
impair the taxing power of the State. The New York 
law was intended to pay for inspection, so as to prevent 
the introduction of contagious diseases into the State 
and, consequently, took on the same footing as quaran- 
tine laws. The Captain and the passengers were trans- 
ferred from the jurisdiction of the General Government 
to that of the State upon the vessel's entry at the Custom 
House. 

Taney concluded his opinion with a sentiment ac- 
cepted by the Court in later decisions 26 that every citizen 
is entitled to free access, not only to the Federal depart- 
ments at Washington, but also to its judicial tribunals 
and public offices in every State and Territory of the 
Union. "We are all citizens of the United States and, 
as members of the same community, must have the 
right to pass and repass through every part of it, without 
interruption, as freely as in our own States." These 
are the words of a Federalist, not of a States rights man. 

26 Vide N. Y. v. Miln, 11 Peters 103. 
26 Crandall v. Nevada, 6 Wall 35 



ROGER BROOKE TANEY 283 

Taney delivered only two other opinions of moment 
at this term of Court. 27 He held that the Federal 
Courts have no jurisdiction in admiralty of a libel by 
owners of a vessel against a consignee of a cargo, to 
recover a contributory share due in general average 
on account of cargo, which the master had delivered 
to such consignee. Taney said: 

It is much to be regretted that the jurisdiction of the Court of 
Admiralty in this country is not more clearly defined. It has 
been repeatedly decided in this Court that its jurisdiction is not 
restricted to the subjects over which the English courts of Ad- 
miralty exercised jurisdiction at the time our constitution was 
adopted. But this case is, in its principles, nothing more than the 
Common Law action for money had and received, brought in 
Admiralty. 28 

In a later most important decision 29 Taney was 
destined to do much towards the definition of the 
admiralty jurisdiction. 

In the other opinion, from which four justices dis- 
sented, 30 the Court held that, in Louisiana, where the 

"Minor opinions are: (1) Matheson v. Bank of Ala. (writ of error); (2) 
Townsend v. Jennison, 7 Howard 706 (Taney dissents from argument, 
agrees with conclusion); (3) Hardeman v. Harris, 7 Howard 726 (It is not 
a material exception to an answer to an equity bill, that it is silent con- 
cerning an immaterial fact, which, if admitted, could not tend to support the 
complainant's equity) ; (4) Udell v. Davidson, 7 Howard 769 (Defence founded 
on an allegation that the defendant's conduct was in fraud of an act of Congress 
is not matter which the Court can re-examine at his instance on a writ of 
error); (5) Neilson v. Lagow, 7 Howard 772 (jurisdiction); (6) Lewis v. Lewis, 
7 Howard 776 (Statute of Limitations in Illinois) ; (7) Van Rensselaer v. Watt, 
7 Howard 784 (Practice) ; (8) Nesmith v. Sheldon, 7 Howard 812. The Supreme 
Court of Michigan having settled a question as to the constitutionality of a 
law of that State, the Supreme Court follows that decision. See the Dred 
Scott Case. Rowan v. Runnels, 5 Howard 134 contra. 

28 Cutler v. Rae, 7 Howard 729 at 732. 

29 That of the Genesee Chief. 
80 U. S. v. Coxe, 7 Howard 833. 



284 ROGER BROOKE TANEY 

judge passes both upon questions of fact and upon those 
of law, if a jury trial is not claimed, the proper practice 
is for the judge to insert in the records the facts found 
by him. The Supreme Court, on a writ of error, must 
then treat such facts as conclusively settled and consider 
the law arising therefrom as stated in the case. 31 

With this year's work, half of Taney's judicial career 
concluded. Carson, after a careful study of the Supreme 
Court Reports, wrote that Taney most frequently was 
in agreement with Nelson and Campbell and that the 
association of these three justices had succeeded to 
the earlier one of Marshall, Washington and Story. 32 
Woodbury and Daniel were, in the main, in accordance 
with Taney, but broke with him in the development of 
the admiralty jurisdiction. McLean and Wayne were 
the "high toned Federalists" on the Bench, as Curtis 
called them, and Catron, Grier, and McKinley had 
similar tendencies, but less pronounced. During this 
general period, a number of changes had taken place in 
the membership of the Court. Thompson had died in 
1843 and had been succeeeded by Nelson. Woodbury 
succeeded Story in 1845 and was succeeded by Curtis in 
1851. Grier succeeded Baldwin in 1844 and Campbell 
took McKinley's place in 1852. 

At the December term of 1849, Taney was the author 
of several important opinions. 33 In Perrine v. Chesa- 

51 Agreement made in 1795 between the Spanish government and the 
Marquis de Maison Rouge, for the transportation of families into the Province, 
was held not to constitute a contract. 

82 Supreme Court. 

82 These are all contained in 9 Howard. The opinions in 8 Howard are not 
of great moment, viz: (1) U. S. v. Carr, 8 Howard 1 (The Act of 1793 does not 
cause the forfeiture of goods for the neglect of a master of a vessel to insert in 
the manifest a particular description of articles of foreign manufacture required 
by that act. If the master delivers to the collector a manifest, certified by the 
collector at the port of departure, and it actually contains mention of the goods, 



ROGER BROOKE TANEY 285 

peake and Delaware Canal Company 34 the Court held 
that a corporation can exercise no powers, save those 
expressly conferred upon it, or those which are incident 
to its existence and, therefore, a canal corporation, not 
empowered by its charter to exact tolls from passengers, 
may not exact such tolls from vessels, by reason of their 
carrying passengers. "A charter is to be fairly ex- 
amined, and reasonably and justly expounded, and not 
to receive a strained interpretation; but, when thus 
examined, if its terms fairly admit of doubt as to whether 
any power burdensome to the public has been granted 
it," this power may not be exercised. In these sen- 
tences, we hear the voice of the author of the decision 
in the Charles River Bridge Case. The canal was 
originally planned to open the trade of the Chesapeake 
Bay to Philadelphia. Baltimore interests were, there- 
fore, naturally adverse to the project; but they wished 

though imperfectly described, there will be no forfeiture.) ; (2) U. S. v. Boisdores 
Heirs, 8 Howard 1 13 (Land claims in Mississippi — expounding words of Statute) ; 
(3) Bennett v. Butterworth, 8 Howard 124 (Jurisdiction) ; (4) Veazie v. Williams, 
8 Howard 134 (Fraudulent action. Dissents with two others, but without 
opinion); (5) Maxwell v. Kennedy, 8 Howard 210 (Defendant may take 
advantage by demurrer of laches appearing on the face of the bill. A judg- 
ment was rendered in South Carolina in 1797, and a bill was filed in Alabama 
in 1844, in a suit against the debtor's children) ; (6) Wanzer, v. Tupper, 8 Howard 
234 (Bailey v. Dozier, 6 Howard 23, affirmed); (7) Lord v. Veazie, 8 Howard 251 
(Court below heard a third person, not a party to the suit, upon a representa- 
tion that the parties to the suit, having a common interest, had gotten up a 
feigned suit to procure an opinion of the court on questions affecting the peti- 
tioner, without making him a party. On writ of error, the lower court was 
sustained); (8) Wilson v. Barnum, 8 Howard 258 (Patent case-jurisdiction) ; 

(9) Gibson v Stevens, 8 Howard 384 (Ownership of warehouse certificates); 

(10) Mayer v. Grima, 8 Howard 490 (Louisiana law imposing a tax on legacies 
payable to aliens is not repugnant to United States Constitution); (11) William- 
son v. Berry, 8 Howard 495 (Trust bequest in N. Y. Dissents with two others 
without opinion. Biddle Const. Hist., 185, says the dissent "must receive the 
approval of every constitutional lawyer." 

24 9 Howard 172. 



286 ROGER BROOKE TANEY 

access to the Susquehanna River, which was encumbered 
with rocks. Pennsylvania agreed to remove these 
rocks, if Maryland would permit the canal to be made, 
but had a provision inserted in the Canal company's 
charter, that it should derive no other powers but those 
given it by Maryland, or necessarily incident to a cor- 
poration. Charters were obtained from Pennsylvania, 
Maryland, and Delaware. Taney stated that, if the 
corporation may refuse permission to vessels to pass 
through its canal, the line of intercourse may be in- 
terrupted and Pennsylvania lose her purpose. "Such 
an unlimited power to levy contributions on the public 
and one so inconsistent with the ordinary course of 
legislation upon that subject, and we may add so unjust 
and injurious to the public, ought not to be sustained in 
a court of justice, unless it is conferred in plain and 
express words." 

"In Maryland 35 with its broad bay, its great numbers 
of navigable tidewater rivers, interrupting travel by 
land, its numerous villages and towns on their banks, 
and its commercial metropolis, seated at the head of 
the bay," there was much transportation of commerce 
on the water and many legislators had to pass to An- 
napolis by boat . The legislature acted with full knowledge 
of this usage. It is possible that, if steam navigation 
could have been foreseen, a toll on passengers might 
have been allowed; "but it is not the province of this 
Court to enlarge the powers of a corporation beyond the 
limitations of its charter, because circumstances have 
changed. Our province is to expound the law as it 
stands, not to determine whether larger powers would 
not have been given, if the legislature had anticipated 
events which have since happened." These questions 

Si Page 188. 



ROGER BROOKE TANEY 287 

are "emphatically questions between the rights of the 
public and the powers of the corporation." Theopinion 
contains a clear and fine statement of the powers of the 
judiciary and the rights of corporations. 

When the holder of a bill, in Lambert v. Ghiselin, 36 
inquired of a person trading at a place, if he knew where 
the endorser resided, he was told, in reply, that he lived 
at Nottingham on West River, the place where the one 
answering traded. The holder had no better means of 
knowledge and the Court held that he had used due 
diligence to learn the place of abode and that a notice 
put into the post office and directed to the endorser at 
Nottingham was sufficient, nor was the holder required 
to give further notice, even though he should afterwards 
discover that the notice was wrongly sent, since the law 
does not require actual notice, but reasonable diligence 
only and reasonable efforts made in good faith, to give 
such notice. 

In another case 37 the Court held that the delivery and 
title of certificates of money due at the Treasury of the 
United States, under the treaty between the United 
States and Mexico, were good, when these certificates 
bore indorsement in blank by the payee, and were 
acquired in good faith and for a valuable consideration 
by the defendant. Although these certificates were not 
on the same footing as negotiable paper by the law 
merchant, yet they were property, transferable by such 
endorsement and delivery. 

A more important case, arising out of the Mexican 
war, concerned the capture and occupation of Tampico 
by the United States forces during the conflict. The 

86 9 Howard 562. The only minor opinion in 9 Howard is Goodtitle v. Kibbe 
at p. 471 concerning a Spanish land grant in Alabama. 
37 Baldwin v. Ely, 9 Howard 580. 



288 ROGER BROOKE TANEY 

occupation was sufficient 38 to cause the place to be re- 
garded by other nations as part of our territory, but 
that fact did not make it a part of the United States under 
the Constitution and laws. Under the revenue laws, 
Tampico remained a foreign country and goods sent 
thence to Philadelphia were subject to duty, although 
the "country was in the exclusive and firm possession 
of the United States. " Taney's opinion continued thus: 

The genius and character of our institutions are peaceful and the 
power to declare war was not conferred on Congress for the pur- 
poses of aggression or aggrandizement; but to enable the general 
government to vindicate by arms; if it should become necessary, 
its own rights and the rights of its country. A war, therefore, 
declared by Congress, can never be presumed to be waged for the 
purpose of conquest, or the acquisition of territory, nor does the law 
declaring the war imply an authority to the President to enlarge 
the limits of the United States by subjugating the enemy 's country . 

This can be done only by the treaty making power, or 

the legislative authority, and is not a part of the power conferred 
upon the President by the declaration of war. His duty and power 
are purely military. As commander-in-chief, he is authorized to 
direct the movements of the naval and military forces placed by 
law at his command and to employ them, in the manner he may 
deem most effectual, to harass, and conquer, and subdue the 
enemy. He may invade the hostile country and subject it to the 
sovereignty and authority of the United States. But his con- 
quests do not enlarge the boundaries of this Union, nor extend the 
operation of our institutions and laws beyond the limits before 
assigned to them by the legislative power. 39 

This discussion of international law in time of war is 
lucid and comprehensive. "By the laws and usages 
of nations, conquest is a valid title, while the victor 

38 Fleming v. Page, 9 Howard 603. 
89 Page 614. 



ROGER BROOKE TANEY 289 

maintains the exclusive possession of the conquered 

country As regards all other nations," 

Tampico "was a part of the United States and belonged 
to them, as exclusively as the territory included in our 
established boundaries. But yet it was not a part of 

the Union The inhabitants were still foes and 

enemies and owed to the United States nothing more 
than the submission and obedience, sometimes called 
temporary allegiance, which is due from a conquered 
enemy, when he surrenders to a force which he is unable 
to resist." Even the custom house at Tampico was 
not "established to give the people of the State of 
Tamaulipas the benefits of commerce ; but, as a measure 
of hostility, it was a mode of exacting contributions from 
the enemy." Every port is a foreign one, unless its 
custom house is within a collection district established 
by Congress and the officers granting clearance from the 
port exercise their functions under the authority of the 
laws of the United States. At the treaty of peace, 
Tampico was returned to Mexico, so that Taney thus 
sums up the matter: 

The sovereignty of the United States resides in the people of the 
several States and they act through their representatives, according 
to the delegation and distribution of powers contained in the Con- 
stitution. And the constituted authorities, to whom the power 
of making war and concluding peace is confided, and of deter- 
mining whether a conquered country shall be permanently re- 
tained or not, neither claimed, nor exercised any rights or powers in 
relation to the territory in question, but the rights of war. 

The case of the Kentucky minstrels — Strader v. Gra- 
ham, 40 brought a slavery question before the Court, 
namely : whether slaves held in Kentucky were emanci- 

10 10 Howard 82. 



290 ROGER BROOKE TANEY 

pated, by going over into Ohio with the permission of 
their master. Graham had sent three of his slaves 
across the Ohio River into the State of that name to 
play as musicians at entertainments. For two years, 
however, they had not left Kentucky, until one day 
they were received on board a steamboat, at Louis- 
ville, without their master's knowledge and were taken 
to Cincinnati, whence they escaped to Canada. Graham 
then brought suit against the owners of the steam 
boat, who averred that the negroes were freemen. The 
Kentucky court decided in favor of Graham, and 
upon an appeal the Supreme Court sustained the judg- 
ment, upon the ground that the question as to whether 
employment of slaves in a free State should free them 
upon their return home, was purely one of local law, 
over which the United States Court could not take 
jurisdiction. 

The North West Ordinance of 1787 and its effect were 
considered in the opinion. That instrument could not 
restrict the power of the States within their territories; 
but Taney maintained that, in any case, 41 it had been 
settled that the Ordinance was no longer in force in 
Ohio, or in any other State, or these States would be 
placed in an inferior condition, as compared with States 
not within the territory covered by that Ordinance. 
Most of its material provisions had been established by 
law and, therefore, the Ordinance is often said to be in 
force. What was really the case was that the Ordinance 
"ceased to be in force, upon the adoption" of the Con- 
stitution, and the provisions which were in force were 
those taken from the Ordinance and enacted on 
August 7, 1789, by Congress. This decision disquieted 

41 Perundi v. First Municipality, 3 Howard 589. 



ROGER BROOKE TANEY 291 

the abolitionists, but seems not to have excited a great 
deal of notice. 

About the same time, Taney voiced the Court's 
decision in refusing to grant an exemption from taxation 
to a railroad which had no such express privilege in its 
charter 42 and in a Patent Case 43 he stated that, if an 
article were known, or used, in a foreign country, but 
had not been previously patented, or described, in a 
printed publication, it may be patented in the United 
States. The patentee "would discover what is unknown 
and communicate the knowledge which the public had 
not the means of obtaining, without his invention." 44 

Later in the term, Taney spoke for the Court, in 
holding 45 that a neutral, having resided in an enemy's 
country, resumes his neutral character, as soon as he 
puts himself and his family in itinere, to return home to 
reside, and that he has a right to take with him the means 
of support of himself and his family in specie. Such 
property is not forfeited by a breach of blockade by the 
vessel, on board of which he has taken passage, if he, 
personally, is in no fault. The defendant, a Frenchman 
domiciled in Mexico, had sailed from Vera Cruz to 
Havana, taking his earnings with him, with the intent 
to return to France. 46 

42 P. & W. R. R. Co. v. Md., 10 Howard 376. Consolidation of Balto. & 
Port Deposit Railroad with two others. 
° Gayler v. Wilder, 10 Howard 477. 

44 Minor opinions are: (1) Wilson v. Sanford, 10 Howard 99 (Procedure 
under the patent act), (2) Rhodes v. Galveston Str., 10 Howard 144,(Pro- 
cedure), (3) Sears v. Eastburn, 10 Howard 187 (Trespass in Ala. Practice), 
(4) Henderson v. Tennessee, 10 Howard 311 (Jurisdiction. Land Grants). 

45 U. S. v. Guillem, 11 Howard 47. 

46 Minor decisions in the volume are: (1) Grimes v. U. S., 11 Howard 163 
(amount involved in an appeal), (2) Hortsman v. Henshaw 11 Howard, 177. 
(If the drawer of a bill puts it in circulation with forged endorsement upon it of 
the name of the payee and the drawee accepts it and pays the money to a bona 



292 ROGER BROOKE TANEY 

In Bennett v. Butterworth 47 Taney maintained that 
in Texas, a State where the distinction between law and 
equity does not exist, the United States Court sitting 
there may adopt the State procedure to try suits at 
law, but that equitable rights must be prosecuted and 
tried, according to the rules prescribed by the Supreme 
Court for pleadings and practice in equity. Here 
again, a slavery question appeared and the Court held 
that a verdict in a suit to try title to slaves, which merely 
found for the plaintiff, $1200, or the value of four 
negroes, would not warrant a judgment. The matter 
in issue was negroes, not their value. 

We have now come to the year 1851 and to the great 
case of the Genesee Chief, which seems to me Taney's 
most important contribution to jurisprudence. 48 In 
England, only tidal rivers had been navigable; hence, in 
English Law, the Admiralty Courts, which had been 
given jurisdiction over navigable waters, found their 
jurisdiction limited to places which felt the effect of 
the tides of the sea. In the United States, the vast 

fide holder for value, he cannot recover back the money paid, since his accep- 
tance is a conclusive acknowledgment that he has funds of the drawer.) (3) 
Brooks v. Norris, 1 1 Howard 204. (Limitations Writ of Error.) (4) Hogan v. Ross 
11 Howard 294 (Writ of error.) (5) Moore v. Brown, HHoward414 (Limitations 
on land title in Illinois. Dissents.) (6) Gill v. Oliver, 11 Howard 529. (In- 
solvency. Dissents in brief opinion, considering that the decision of the 
Maryland court from which appeal was taken should be reversed.) (7) Hogg 
v. Emerson, 11 Howard 587 (Patents, Dissents. No opinion.) (8), U. S. v. Ferner, 
11 Howard 653 (Spanish laws prevailing in Louisiana before cession and 
affecting land titles therein must be judicially noticed by the Court. Their 
existence is not matter of fact for a jury.) 

47 11 Howard 669. 

48 Propeller Genesee Chief v. Fitzhugh, 12 Howard 443. Emerson in his 
essay on Power in a volume entitled "Conduct of Life." (a volume which was 
copyrighted in 1860, but contained lectures delivered for several years previous) 
thus refers to this decision: "The commerce of rivers, the commerce of rail- 
roads, and who knows but the commerce of air balloons, must add an American 
extension to the pondhole of admiralty." 



ROGER BROOKE TANEY 293 

expanse of the Great Lakes and stretches of the continen- 
tal rivers, extending for hundreds of miles, were not 
tidal; yet upon these waters large vessels could move, 
with burdens of passengers and cargo. The Supreme 
Court decided, and Taney expressed its opinion, that 
the admiralty jurisdiction of the United States Courts 
extends to waters which are actually navigable, without 
regard to the ebb and flow of ocean tides. It was an 
eminently reasonable decision. The rule of the English 
law was rejected, because the conditions here were such 
that it was inapplicable; ratione cessante, res ipsa cessat, 
as the old maxim has it. Yet it was a bold decision to 
be made by a precedent-loving court and it was one of 
great importance, since it placed the inland water- 
borne commerce of the whole country under the control 
of uniform Federal laws and of a uniform system of 
Federal courts. This was a great nationalizing decision 
and was worthy of Taney's Federalistic training. In 
a case concerning a collision, the constitutionality of 
an Act passed by Congress in 1843 was brought into 
question and the Court upheld the law, not as a regula- 
tion of commerce, but under the provision of the United 
States Constitution that the judicial power of the 
United States extends to admiralty and maritime 
jurisdiction. Taney was a great admiralty judge and 
his opinions in cases of collisions are always peculiarly 
satisfactory. 

The collision occurred on Lake Ontario in May, 1847„ 
and the propeller, Genesee Chief, struck and sank the 
schooner, Cuba, bound from Sandusky to Oswego. 
Taney stated that, if a steamer be wrongfully in danger- 
ous proximity to a sailing vessel, and there is immediate 
and pressing danger of a collision and the master of the 
sailing vessel, previously in no fault, in the alarm of 



294 ROGER BROOKE TANEY 

the moment, fails to give a proper order, this did not 
exempt the steamer from damages for the ensuing 
collision. When a steamer had not a proper look-out 
in the night time, there is prima facie evidence that it 
was at fault in case of a collision. 

The case derived its importance, however, not so 
much from the facts of the collision, as because the 
proceedings were instituted under a Congressional law 
which was brought into question and which could only 
be used in these circumstances, if the admiralty jurisdic- 
tion extended to the great freshwater lakes. Appreciat- 
ing the importance of the results of the decision, Taney 
approached the subject with caution. Congress could 
not extend the admiralty jurisdiction under the power 
to regulate commerce, for the powers are distinct. 

These lakes, are, in truth, inland seas. Different States border 
on them on one side and a foreign nation on the othei. A great 
and growing commerce is carried on upon them between different 
States and a foreign nation, which is subject to all the incidents and 
hazards which attend commerce on the ocean. Hostile fleets 
have been encountered on them and prizes have been made, and 
every reason, which existed for the grant of admiralty jurisdiction 
to the general government on the Atlantic seas, applies with equal 
force to the lakes 

It would be contrary to the first principles on which the Union 
was formed, to confine these rights to the States bordering upon 
the Atlantic and to their tidewater rivers connected with it, and 
to deny them to the citizens who border on the lakes and the 
great navigable streams which flow through the Western States. 

Such a construction, certainly, was not the founders' 
intentions and to accept it, would fail to give "perfect 
equality in the rights and privileges of citizens, not only 
in laws but in ways of administering them ; for the com- 
merce on the lakes and the navigable waters of the West 
will be denied the same courts and the same jurisdiction 



ROGER BROOKE TANEY 295 

for its protection" as the Constitution secures for the 
Atlantic States. 

The only objection was that these Western waters 
have no ocean tide; but there is "nothing in the ebb and 
flow that makes waters peculiarly suitable for admiralty 
jurisdiction, nor anything in the absence of a tide" 
that makes them unfit for such jurisdiction. The 
distinction is absolutely arbitrary. In England, the 
definition is sound; for no stream is navigable beyond 
tidewater and so tidewater and navigable water are 
synonymous terms. At the time when the Constitution 
was adopted, the English definition was equally proper 
in America. "Until the discovery of steamboats, there 
could be nothing like commerce, upon waters with an 
unchanging current, resisting the upward passage." 
The old description of public navigable rivers was used 
after it had ceased, from the change in circumstances, 
to be a true description. The case of The Thomas 
Jefferson,™ in which the old definition was approved, 
embarrassed the Court. But Taney hesitated not at all 
to break the rule of stare decisis and, boldly, said that: 
"if we follow it, we follow an erroneous decision, into 
which the Court fell when the great importance of the 
question, as it now presents itself, could not be foreseen, 
and the subject did not, therefore, receive that deliberate 
consideration which, at this time, would have been 
given to it." 

That decision was made in 1825, when the "commerce 
on the rivers of the west and on the lakes was in its 
infancy and of little importance, and but little regarded, 
compared with that" of 1S50. 50 If the tide limited 

49 10 Wheaton 428. 

50 The case of The Thomas Jefferson was one which only involved questions 
of jurisdiction and not of property, so that no contracts were disturbed by 
disregarding it. The Court's opinion was rendered by Justice Story. 



296 ROGER BROOKE TANEY 

the admiralty jurisdiction, then a purely arbitrary line 
would have to be drawn on the Mississippi River. 51 
"There can be no reason for admiralty power over a 
public tide water, which does not apply with equal force 
to any other public water used for commercial purposes 
and for trade. The lakes and the waters connecting 
them are undoubtedly public waters and we think 
are within the grant of admiralty and maritime 
jurisdiction." 

Taney considered that the judiciary act of 1789 had 
this in view, in speaking, not of tidewater but of "waters 
which are navigable from the sea by vessels of 10 or 
more tons burden." 

Tyler's eulogy 52 of this decision is deserved that "it 
is a remarkable instance of a thoroughly technical 
lawyer realising that enlightened jurisprudence requires 
the judge to adapt our borrowed law to the conditions 
of our own country" and that it is a "signal example of 
impartial judicial wisdom." 53 

Another important case decided by Taney in 1851 
was Dinsman v. Wilkes 54 in which a marine brought 

61 Page 303. 

62 Curiously Taney's ardent eulogist, Mikell, 4 Great American Lawyers 
144, almost alone here is critical and states that Taney had first "decided 
what ought to be the law and then had written his opinions to justify his 
conclusions." Biddle, Const. Hist., p. 174, speaks of Taney's reasoning in 
this case, as "set forth so clearly, so convincingly, may I not say in a manner 
incapable of being confuted." 

63 12 Howard 39. 

"Minor decisions in the volume are: (1) Smith v. Clark, 12 Howard 13 
(practice) (2) Parks v. Turner. 12Howard39 (Statute of jeofailes and practice of 
Circuit Court for Louisiana) (3) Montault v. U. S., 12 Howard 47 (After Feb- 
ruary 10, 1763, the date of the treaty of Peace between Great Britain and 
France by which territory between the Mississippi and the Perdido Rivers was 
ceded to the former, France could not grant lands therein) (4) Grand Gulf R. R. 
Co. v. Marshall, 12 Howard 165 (Procedure in writ of error) (5) Bein v. Heath, 
12 Howard, 168 (Injunction bond in Louisiana Equity procedure) (6) U. S. 



ROGER BROOKE TANEY 297 

suit for trespass against the commander of the United 
States exploring expedition because of punishment 
inflicted for refusing to do duty in a foreign port, on the 
ground that the time of his enlistment had expired and 
he was entitled to a discharge. The case was felt to 
be one of "much delicacy and importance as regards 
our naval service. For it is essential to its security 
and efficiency, that the authority and command confided 
to the officers, when it has been exercised from proper 
motives, should be firmly supported in the courts of 
justice, as well as on shipboard. And if it is not, the 
flag of the United States, would soon be dishonored on 
every sea. But, at the same time, it must be borne in 
mind that the nation would be equally dishonored, if 
it permitted the humblest individual in its service, to 
be oppressed, or injured by his commanding officer, 
from malice, or ill will, or the wantonness of power, 
without giving him redress in the courts of Justice." 
Wilkes was in distant seas and was charged with a high 
public duty. The plaintiff was really not entitled to a 
discharge, but the authority to determine the question 
for the time being lay in Wilkes's hands. He might err, 
but his decision was conclusive, and the plaintiff's 
duty was to submit. The belief of Dinsman as to his 

v. Wilkinson, 12 Howard 246 (Procedure, a copy of a bond duly authenticated is 
admissible in evidence) (7) Bond v. Brown, 12 Howard 254 (Ruling of Judge 
without jury in Louisiana) (8) Saltmarsh v. Tu thill, 12 Howard 387 (Mandamus 
and supersedeas) (9) Lanton v. Stanton, 12 Howard 423 (Decision of State 
Court in favor of right claimed under an act of Congress does not entitle the 
loser to a writ of error) (10) U. S. v. Porche, 12 Howard 426 (Act of 1824 right 
to file a petition in Louisiana under a French or Spanish grant of land to two 
years thereafter) (11) U. S. v. LeBlanc, 12 Howard 435 (Paper extracted from 
Spanish register of land titles in Louisiana, purporting to contain only the 
recitals which usually precede Spanish titles in form, but adding no words of 
grant, is not evidence of title, especially when nothing had been claimed under 
it for 69 years). 



298 ROGER BROOKE TANEY 

rights furnished no justification for disobedience, con- 
sequently, for that "act of insubordination," he was 
"liable to punishment." Wilkes also had discretion as 
to the degree of punishment, but might not punish from 
malice, or vindictive feeling, or disposition to oppress, 
and his motive in inflicting the punishment was a 
question of fact for the jury exclusively. 55 

In the United States v. Reid 56 Taney gave the decision 
for the Court that the rules of evidence in force in the 
Federal Courts are not those of England, but those in 
force in the respective States, when the judiciary act 
of 1789 was passed. Congress may change these rules, 
but no subsequently passed State law may do so. In 
the same case, he refused to set aside a verdict, because 
two jurors read the newspapers in the jury room; for 
nothing in this act was calculated to influence the deci- 
sion in the case and both of the jurors swore that it had 
not done so. 

In the latter part of the year, Taney delivered opinions 
in two important cases arising out of the Mexican War. 
In one of these 57 an army officer was sued in trespass, 
for seizing, in Chihuahua, valuable property of a New 
York merchant, who was a Spaniard by birth, but who 
had been naturalized as a citizen of the United States. 
A verdict was given below for Harmony, the merchant, 
in a considerable amount 58 and Mitchell, the officer, then 
appealed from this judgment. The facts in the case 
were as follows : Harmony had planned a trading expedi- 
tion from Santa Fe to Chihuahua, before the Mexican 
War began, and set out from Fort Independence, 

65 12 Howard 361. 

58 Mitchell v. Harmony, 13 Howard 115. 

67 $90,806.14 and $5,048.94 costs. 

68 Jecker v. Montgomery, 13 Howard 498. 



ROGER BROOKE TANEY 299 

Missouri, on that intent. After General Kearney's 
campaign began against the Mexican forces in New 
Mexico, he stopped Harmony, but permitted him to 
continue trading behind the army. On Kearney's 
transfer to California the campaign was left to Colonel 
Doniphan, under whose command was Mitchell, the 
appellant. When Harmony had arrived in the State of 
Chihuahua, and was about 300 miles from the city of 
that name, he determined to proceed no further. Doni- 
phan insisted that he do so and, therefore, Harmony 
continued "in that hazardous expedition." "This," 
said the Court, "was unquestionably a taking of the 
property, by force, from the possession and control of 
the plaintiff and a trespass on the part of the defendant, 
unless he can show legal grounds of justification. " The 
latter may be shown thus: 

If with such information as he had a right to rely upon, there 
is reasonable ground for believing that the peril is immediate and 
menacing, or the necessity urgent, he is justified in acting upon it, 
and the discovery afterwards that it was false, or erroneous, will 
not make him a trespasser. But it is not sufficient to show that 
he exercised an honest judgment and took the property to promote 
the public service; he must show, by proof, the nature and charac- 
ter of the emergency, such as he had reasonable grounds to believe 
it to be, and it is then for a jury to say, whether it is so pressing as 
not to admit of delay, and the occasion such, according to the 
information upon which he acted, that private rights must, for 
the time, give way to the common and public good. 

Mitchell had not shown this: "The property was 
seized, not to defend" Colonel Doniphan's "position, 
nor to place his troops in a safer one, or to anticipate the 
attack of an approaching enemy, but to insure the 
success of a distant and hazardous expedition upon which 
he was about to march. To justify the seizure, the 



300 ROGER BROOKE TANEY 

danger, or need, must have been urgent and immediate; 
not remote, or contingent. There was no question here 
of an officer's discretion in military operations, or in 
relation to those under his command." His distance 
from home and the duties in which he is engaged cannot 
enlarge his powers over the property of a citizen, nor 
give to him, in that respect, any authority which he 
would not, under similar circumstances, possess at 
home. And, when the owner has done nothing to for- 
feit his rights, every public officer is bound to respect 
them, whether he finds the property in a foreign or 
hostile country, or in his own. "It is impossible to 
define the particular circumstances of danger, or neces- 
sity, under which the power may lawfully be exercised; 
for every case must depend on its own circumstances." 
"Our duty is to determine under what circumstances, 
private property may be taken from the owner by a 
military officer in time of war. And the question here 
is whether the law permits it to be taken to insure the 
success of any enterprise against a public enemy, which 
the commanding officer may deem it advisable to under- 
take. And we think it very clear that the law does not 
permit it." This insistence upon the subordination of 
the military power to the laws is the essence of Taney's 
later and more famous decision in Ex Parte Merryman. 
Mitchell also attempted to justify himself on four 
other grounds. First, he claimed that Harmony was 
trading with the enemy. That plea, had been correctly 
overruled by the Court below, since the military officer 
had no right to seize the property of an American citizen 
for performing an act which the constituted authorities, 
acting within the scope of their lawful powers, had 
authorized to be done. Secondly, Mitchell pleaded that 
the compulsion was necessary to prevent the property 



ROGER BROOKE TANEY 301 

from falling into the enemy's hands. His reply to this, 
Taney combined with that to the plea that the property 
had been taken for public use. 

Thirdly, the defendant asserted that Harmony had 
resumed possession and control of the property before 
losing it, which fact released Mitchell from any claim 
for damages. Taney replied that this had not been 
proven. To the fourth ground of defence, that Mitchell 
had obeyed his commanding officer, the Court's rejoinder 
was that the evidence showed that Mitchell advised 
the order and volunteered to execute it and that the 
"order given was to do an illegal act; to commit a tres- 
pass upon the property of another; and can afford no 
justification to the person by whom it was executed. 
. . . . The order may palliate, but it cannot justify." 

The other case arising out of the Mexican war, dealt 
with naval affairs 59 and the Court held therein that 
neither the President, nor any inferior executive officer, 
could establish a prize court competent to take jurisdic- 
tion in a case of capture, jure belli. 

The law of nations, confirmed by an act of Congress, 
made it the duty of a captor to send the captured prop- 
erty for adjudication by a prize court in his own 
country with competent jurisdiction. He may be 
excused, through imperative circumstances, for making 
a sale of the property and, afterwards in due season, 
subjecting the proceeds to the jurisdiction of the proper 
prize court. The orders of the commander-in-chief not 
to weaken the force by detaching an officer and crew 
for the prize, or the captor's own deliberate judgment 
that the public service does not permit him to make 
such a detachment, will excuse him from sending in 
the prize for adjudication. If no sufficient excuse is given, 

59 U. S. v. Ferriera, 13 Howard 40. 



302 ROGER BROOKE TANEY 

or if the captor unreasonably delayed to bring the prize 
to an adjudication, the court may refuse to proceed and 
award a restitution, with or without damages, on the 
ground of the forfeiture of rights by the captor, even 
though the original capture were lawful. If the captor 
neglect to proceed at all, the Court, on a libel filed by 
the owner for a marine trespass, may grant a monition 
to proceed to a adjudication in a prize court, or may at 
once award damages. In this case, however, the captor 
had not forfeited his rights and the prize court was 
ordered to proceed with the case. The United States 
Sloop of War, Portsmouth, seized the Admittance, an 
American vessel, trading with the Mexicans at San 
Jose, California. A prize court had been established 
by the commandant at Monterey, a chaplain having been 
appointed Alcalde there and authorized to exercise 
admiralty jurisdiction. This court had later been 
sanctioned by the President. On the ground that prize 
crews could not be spared from the squadron to bring 
the captured vessels to the United States, the ship and 
cargo were condemned at Monterey in 1847. The 
money, which was the proceeds of the sale, had been 
sent to the United States and was now in the custody 
of the Treasury department. The court thus summed 
up the matter: "All captures jure belli are for the benefit 
of the sovereign under whose authority they are made 
and the validity of the seizure and the question of prize, 
or no prize, can be determined in his own courts only, 
upon whom he has conferred jurisdiction to try the 
question." 

Still another case of some importance was one which 
arose from the operations of the American army in 
Florida. 60 An act of Congress authorized the District 

60 Not by the President. There is a note on p. 52 on Hayburn's Case and 
on the Yale Todd case. 



ROGER BROOKE TANEY 303 

Judge for that State to adjudicate claims arising from 
this source and decreed that the claims should then be 
paid, if the Secretary of the Treasury should, on receipt 
of the evidence, deem them equitable. Under these 
circumstances, the Supreme Court held that the Judge 
did not exercise judicial power, but acted only as a 
commissioner and no appeal lay. Congress was morally 
bound to provide a tribunal for such cases, but had 
failed to do so. The question at issue was one between 
American and Spanish Law. These ex parte proceedings 
were not judicial and the Secretary of the Treasury, 
not the judge, decided whether the United States owed 
a debt. Taney thought the act was a breach of the 
treaty with Spain, by which Florida had been annexed; 
but that the question was political and not judicial. 
Of course, the Judge, acting as commissioner and using 
"judgment and discretion," must exercise a judical 
power, as does every commissioner. The law had, for 
many years, been acted on as valid and constitutional 
and the Court would not now overturn it, especially 
as the validity of the appointment of the judge as com- 
missioner by the act 61 was not before the Court. 62 

61 Minor decisions in 13 Howard were: (1) Crawford v. Points, 13 Howard 1 1 
(No appeal allowed from District Court decree in bankruptcy) (2) Roe v. 
Beebe, 13 Howard, 25 (Ejectment in Alabama) (3) Barrow v. Hill, 13 Howard 54 
(Procedure on Writ of Error) (4) Williamson v. Barret, 13 Howard 101 (Collision, 
Dissents, no opinion) (5) Morsell v. Hall, 13 Howard 212 (Demurrer) (6) 
U. S. v. McCullogh, 13 Howard 216 (Land grant in Louisiana) (7) Trumbull 
v. Adams 13 Howard 295 (Under warehousing act of 1846, an importer had no 
right, independently of regulations by the Secretary of the Treasury, as soon 
as the law had been passed, to land goods at a point of delivery to which the 
goods were destined and store them there, giving bonds as the act directed, 
since the operation of the act was confined to ports of entry, until extended by 
the Secretary to points of delivery) (8) Lawrence v. Caswell, 13 Howard 488 
(Under tariff act of 1846, only the quantity of brandy imported, and not that 
shown by the invoice, is dutiable: but as this act lays an ad valorem duty, an 
allowance of 2 per cent of the quantity gauged cannot be made under the act 



304 ROGER BROOKE TANEY 

One of Taney's most important dissenting opinions 
was filed at this term and the general opinion, even of 
his admirers, pronounces him to have been wrong in it, 
owing to his too narrow construction of the power over 
commerce. It was the famous Wheeling bridge case, 63 
in which the Court held that a law of Virginia, authoriz- 
ing the obstruction of the Ohio River, by the construction 
of a bridge over the stream, was inoperative, because 
the river was a public navigable stream and the bridge 
obstructed free navigation. Pennsylvania brought the 
suit, inasmuch as that State, being the proprietor of 
public works, suffered special damages to its property 
by reason of this alleged public nuisance. The Court 
ordered that, by a suitable drawbridge, navigation 
should be restored to the condition of being free from 
an unreasonable obstruction, but that the bridge should 
not be ordered to be abated as a nuisance. 

Taney said that, if the bridge was a nuisance, it was 
because of the violation of some law which the court 
had the right to administer. Pennsylvania had the 
same rights as an individual and no more. The Federal 
Government, in Taney's view, had the right to regulate 
commerce on the Ohio River, as a public navigable 
stream; but had not exercised that power, consequently, 
the Court can not act under any Statute. Nor can it 
act under the Common Law: for the United States 
Courts have no Common Law jurisdiction, unless it 
has been conferred by Congressional action. The bridge 

of 1799, for that law applied only to liquors subject to duty by the gallon) 
(9) United States v. Pellerin, 13 Howard p. 9. (French- grants in Louisiana 
after the date of the treaty making the cession to the United States are void, 
unless a continued possession has laid the foundation for presuming confirma- 
tion of a Spanish grant by the authorities.) 

62 Pa. v. Wheeling Bridge Co., 13 Howard 518 at 579. 

63 Gibbons & Osden, 9 Wheat 1. 



ROGER BROOKE TANEY 305 

was not a nuisance under the Common Law of Virginia. 
If it had been such, the persons, who built and continued 
to operate the bridge, might have been indicted there- 
under, but this could not be done. Congress may 
declare the obstruction of navigable streams an offence 
against the United States; but, until this has been done, 
Taney saw no redress for Pennsylvania. He distin- 
guished cases of this kind from boundary cases, where 
the original jurisdiction was conferred by the Consti- 
tution and where the power of Congress was merely 
to provide for the procedure. The bridge lay exclusively 
within the territory of Virginia and Taney held that the 
authority of that State remained over the river, until 
Congress shall act, as otherwise the river would be under 
no control. He could find no reason for deciding 
against the bridge in the compact betweeen Virginia 
and Kentucky, when the later area became a State, nor 
in the act regulating coasting vessels. He distinguished 
the case from Gibbons v. Ogden, 64 likened it to Wilson 
v. Blackbird Creek Marsh Company, 65 and called atten- 
tion to the fact that, if the bridge obstructed navigation, 
the Virginians also suffered. He held that the fact that 
there was a port of entry on the Ohio above the bridge 
was of no moment. Equity should not interfere in 
this case, as Taney viewed it, for the evidence was 
conflicting and the injury doubtful and there were no 
serious embarrassments in the way of an action at law 
by Pennsylvania for damages. That State suffered a 
"speculative, questionable, and, at most, inconsiderable 
loss." She may not sue in behalf of individuals. The 
bridge will promote the convenience of the public and 
the advantages which the great body of the people of 

64 Wilson v. Blackbird Creek Marsh Co. 2 Pet. 245. 
66 14 Howard 38. 



306 ROGER BROOKE TANEY 

the United States will reap from the bridge appeared 
to Taney to outweigh the disadvantages and incon- 
venience sustained by commerce and navigation. Taney 
thought the case "came to near the confines of legisla- 
tion" and it is fairly clear now that the Court was right 
in holding that he pushed the doctrine of the silence of 
Congress to a dangerous excess. 

In 1852, Taney was the mouthpiece of the Court in 
Kennett v. Chambers, 66 a case of some importance, in 
which his opinion seemed to Biddle "eminently wise and 
correct." 67 The case involved a contract made in 
1836 by an inhabitant of Texas, to convey land there to 
citizens of the United States, in consideration of advances 
of money made by them in the State of Ohio, to enable 
him to raise men and purchase firearms, to carry on 
war with Mexico. The independence of Texas had not 
yet been acknowledged by the United States, so that the 
contract was held by the Court to have been contrary 
to our national obligations to Mexico: to have violated 
the public policy and the neutrality laws of the United 
States; and, consequently, to have been one which can 
not be specifically enforced by the Federal Courts. It 

66 Constitutional History 176 (a), p. 50. 

67 Minor decisions at this term were: (1) Wylie v. Cox, 14 Howard 1 (Appeal) 
(2) Ex parte Taylor, 14 Howard 3 (Mandamus) (3) Kanouse v. Martin, 14 
Howard 23 (procedure on Writ of Error) (4) Ex parte Many, 14 Howard 24 
(Mandamus) (5) Exparte Many, 14 Howard 25 (Reargument permitted, only 
when member of Court who concurred in the judgment asks it) (6) Herman 
v. Phalen 14 Howard, 79 (Affirmance) (7) Perkins v. Fouringuet, 14 Howard 328 
(appeal) (8) Peale v. Phipps, 14 Howard 358 (Receiver appointed by a State 
Court in Mississippi cannot be served in that capacity in a Federal Court in 
Louisiana) (9) Bosley v. Bosley's Executrix, 14 Howard 391 (A contract made 
by a testato r after making his will, to lease land for 99 years, with a ground 
rent extinguishable by the payment of a fixed sum, revokes a devise. Whether 
the land passes with the residuary estate is a question of fact) (10) Jackson v. 
Hale, 14 Howard 525 (Receipt of Warehouseman) (11) Bloomer v. McQueen, 
15 Howard 539 (patent). 



ROGER BROOKE TANEY 307 

belonged to the Federal Government to decide when 
Texas was no longer a part of Mexico. Taney went on 
to say 68 with great wisdom : 

The intercourse of this country with foreign nations and its 
policy in regard to them are placed, by the Constitution of the 
United States, in the hands of the government and its decisions 
upon these subjects are obligatory upon every citizen of the Union. 
He is bound to be at war with the nation, against which the war 
making power has declared war, and equally bound to commit no 
act of hostility against a nation with which the government is in 
amity and friendship. This principle is universally acknowledged 
by the laws of nations. It lies at the foundation of all govern- 
ment, as there could be no social order, or peaceful relations be- 
tween the citizens of different countries, without it. It is, how- 
ever, more emphatically true, in relation to the citizens of the 
United States. For, as the sovereignty resides in the people, 
every citizen is a portion of it and is himself, personally, bound by 
the laws which the representatives of the sovereignty may pass, 
or the treaties into which they may enter, within the scope of their 
delegated authority. And when that authority has plighted its 
faith to another nation, that there shall be peace and friendship 
between the citizens of the two countries, every citizen of the 
United States is equally and personally pledged. The compact 
is made by the department of the government, upon which he 
himself has agreed to refer the power. It is his own personal 
compact, as a portion of the sovereignty in whose behalf it is made. 
And he can do no act, nor enter into any agreement to promote, 
or encourage, revolt, or hostilities against the territory of a country 
with which our government is pledged by the treaty to be at 
peace, without a breach of the faith pledged to the foreign nation. 
If he breaks these rules, the Court will not aid him, even though he 

68 14 Howard 268. Another dissenting opinion was filed in Re Kaine, 
14 Howard 103 where Taney maintained that, when a United States Marshal, 
under order of a commissioner, held a man for extradition as a fugitive from 
justice in Great Britain, the Court below, to which a habeas corpus writ had 
been served out, had erred in upholding the commissioner's proceedings. 



308 ROGER BROOKE TANEY 

was actuated by a desire to promote the cause of freedom. But 
our own freedom cannot be preserved without obedience to our 
own laws, nor social order preserved, if the judicial branch of 
the government countenanced and sustained contracts made in 
violation of the known and established policy of the political 
department, acting within the limits of its constitutional power. 

The question of the independence of Texas was 
entirely for the department of the government charged 
with foreign relations to determine. Taney would not 
investigate whether Texas was independent before our 
recognition of her as a State; for, to do so, would "take 
upon ourselves the exercise of political authority, for 
which a judicial tribunal is entirely unfit and which 
the Constitution has conferred exclusively upon another 
department." The subsequent acknowledgment and 
annexation of Texas gave no legality to the agreement, 
which was void and illegal when made. The contract 
was to be performed in Cincinnati, not Texas, and the 
advance of money for purposes in "contravention of the 
neutral obligations and policy of the United States" 
avoided the contract. No law of Texas could absolve 
an United States citizen from his duty to his govern- 
ment, nor compel the Federal Court to support a 
contract, if made either in violation of our laws, or in 
contravention of the public policy of the government, 
or in conflict with subsisting treaties with a foreign 
nation. There is a wise sanity about this opinion which 
is very effective. 69 

69 15 Howard 62. Minor opinions in the same volume of reports: (1) 
U. S. v. Roselius, 15 Howard 36 (Spanish land title in Louisiana) (2) Phelps v. 
Meyers. 15 Howard 160 (procedure) (3) Winansv. Denmead, 15 Howard 330 
(Taney dissents in patent case. No opinion.) See Connor's Campbell, p. 25. 
(4) Walworth v. Kneeland, 15 Howard 348 (Jurisdiction) (5) Carter v. Bennett) 
15 Howard 354 (Jurisdiction through diverse citizenship) (6) Dem. v. Ass. of 
the Jersey Co., 15 Howard 426 (Confirmation of Martin v. Waddell). 



ROGER BROOKE TANEY 309 

In the case of Vincennes University v. Indiana, Taney 
dissented. 70 The University had been created by the 
Territory of Indiana in 1806, and the Court held that 
the legislature had this power and that the State Con- 
stitution had not impaired the corporation's rights. 
While the franchises could not be exercised while there 
was no board of trustees, yet the corporation was not 
dissolved and its powers to act were restored by a sub- 
sequent law, under which the board was organized. 
The corporation was not a public one and the legislature 
could not divest its title to land given it by the charter 
and confer it upon another body politic. Taney, dis- 
senting, distinguished between a reservation of lands 
from sale in 1806 and a grant of land. The former did 
not, to his mind, divest the title from the United States. 
The funds of the institution, he said, were contributed 
wholly for public purposes by the people and the ap- 
pellants had no private individual interest, but are 
merely public agents for a public purpose. We listen 
here to echoes of the Charles River Bridge Case. 

The great patent case of O'Reilly v. Morse, involving 
the electric telegraph, was Taney's most important 
opinion in 1853. 71 The Court upheld the claim of 
S. F. B. Morse to be the first inventor of the magnetic 
telegraph. If he had been preceded by an European 
invention, neither patented nor described in print, his 
patent would still be good, nor would inquiries made, 
or information, or advice received by him from men of 

70 The fact that the American patent was not made for the same time as a 
foreign patent for the same invention did not make it invalid. 

71 The specifications for a patent must be so "full and exact that anyone 
skilled in the science to which it appertains can, by using the means he specifies, 
without any addition to or subtraction from them, produce precisely the result 
he describes." The patent given confers "the exclusive right to use the means 
he specifies to produce the result, or effect he describes, and nothing more." 



310 ROGER BROOKE TANEY 

science, impair his claim to an invention actually made 
by him. Morse had petitioned for a patent in 1837, 
received a patent in 1840, and obtained reissues in 
1846 and 1848, the latter one being quite important. 72 

The case was recognized as important, was argued at 
the term before that at which the decision was made, 
and was then continued. Taney said of Prof. Joseph 
Henry, one of the witnesses in the Court below: "no one 
has contributed more to enlarge the knowledge of electro- 
magnetism and to lay the foundations of the great 
invention of which we are speaking." 

Morse began work on the invention at a time, when 
"the conviction was general among men of science every- 
where that the object could and, sooner or later, would 
be accomplished." Four inventors were nearly simul- 
taneous in their discoveries, Morse in America, Steinheil 
of Munich in 1838, Wheatstone in 1837 and Davy 
in 1838 in England, but the two latter ones did 
not describe their invention until 1839. Morse made 
his invention in 1837, overcoming the difficulty of the 
gradual weakening of the galvanic current on the wire, 
so that after a certain distance, it was not strong enough 
to produce a mechanical effect. The variations from 
his earlier descriptions in the reissue did not imply that 
there had been a different discovery, but rather that the 
inventor gave a "more perfect description of his inven- 
tion." His claim for the " use of the motive power of 
the electric, or galvanic current, .... however 
developed, for marking or permitting intelligible charac- 
ters, signs or letters, at any distances, being a new 
application of that power of which I claim to be the 
first inventor" was too broad: for he described but one 
process and there should have been a disclaimer filed. 

72 Ohio Co. v. De Bolt, 16 Howard 416. 



ROGER BROOKE TANEY 311 

As there was delay in this, Morse was not given costs 
against the infringer; but the law, which required the 
disclaimer, was remedial, not penal; and was for the 
protection both of patentee and of the public, so the 
patent was not overturned. 73 

Another decision made later in the term 74 showed a 
divided Court, which did not agree upon principles, 
only Justice Grier concurring with Taney. The case 
involved the right of a State to tax a corporation 
previously untaxed and the prohibition of the im- 
pairment by a State of the obligation of a contract 
entered into the case. In Taney's long opinion he 
said : 75 

It cannot be maintained, in any tribunal in this country, that 
the people of a State, in the exercise of the powers of sovereignty, 
can be restrained within narrower limits than those fixed by the 
Constitution of the United States, upon the ground that they may 
make contracts ruinous to themselves. The principle, that they 
are the best judges of what is for their own interest, is the founda- 
tion of our political institutions. 

Banks may be exempted by contract, from their 
equal share of the taxes, as they are likely to be a benefit, 
and even if they later prove to be a public injury, the 
contract is binding, if it be within the authority of the 

73 At p. 429. 

74 Minor decisions in this volume are: (1) Burgess v. Gray, 16 Howard 48 
(State Courts have no jurisdiction to try to give effect to inchoate French or 
Spanish titles to land. Mere possession of land in Missouri is no title against a 
grantee under the United States.) (2) Fournequet v. Perkins, 16 Howard 82 
(Exceptions to a master's report) (3) Siozer v. Many, 16 Howard 98 (Taxing 
costs) (4) Robertson v. Smith, 16 Howard 106 (jurisdiction under Section 25 of 
the Act of 1789 as to powers of trustees of bank (5) State bank of Ohio v. 
Knoop, 16 Howard 392 (Taney held that Ohio Life Insurance Co. Case should 
have been followed. 

75 16 Howard 635, Doe, v. Braden. 



312 ROGER BROOKE TANEY 

State. The Charles River Bridge Case admitted this 
fact, but decided against the corporation, because the 
privilege had not been so granted. 

The powers of sovereignty, confided to the legislative body of a 
State, are undoubtedly a trust committed to them, to be executed, 
to the best of their judgment, for the public good, and no one 
legislature can, by its own act, disarm their successors of any of 
the powers, or rights, of sovereignty, confided by the people to the 
legislative body, unless they are authorized to do so by the Consti- 
tution under which they were elected. 

The Ohio Constitution, interpreted by an Ohio Court, 
decided that the Constitution did not make this 
authorization; but earlier decisions, made while the 
State Constitution of 1802 was in force, are contrary to 
this. "This Court always follows the decision of the 
State Courts in the construction of their own Constitu- 
tion and laws. But where those decisions are in conflict, 
this Court must determine between them" and "adopt 
the construction" the Constitution "received from the 
State authorities, at the time the contract was made." 
If the contract was then valid, its validity cannot, 
subsequently, be impaired by the legislature. This 
question, as we shall see, came up subsequently in the 
Dred Scott case. 76 

In one of the many perplexing suits arising out of 
Spanish grants of lands in Florida, 77 Taney held that 
whether the King of Spain had power to annul a pre- 
vious grant, by a provision of the Treaty of 1819, is a 
"question foreclosed in every judicial tribunal of the 
United States, by the action of the President and Senate, 

76 17 Howard 369 at 391. 

77 The Statute of Elizabeth conferred no new powers on the crown and so 
was not in point. 



ROGER BROOKE TANEY 313 

treating with him as having that power." He added 
that "a. treaty is, therefore, a law made by the proper 
authority." 

At the term beginning in December 1854, Taney 
concurred with the decision, but dissented from the 
reasoning in Fontain v. Ravenel, 78 concerning charitable 
bequests in Pennsylvania and South Carolina. The 
Court held that its judicial power extended to law and 
equity, but not to the prerogatve powers, which the 
king, as parens patriae, exercised over infants, lunatics, 
idiots, and charities. These powers remain with the 
States, whose laws may not authorize the Federal Courts 
to exercise power that is not in its nature judicial, nor 
can they confer upon them prerogative powers. 79 The 
Circuit Courts of the United States deal with bequests 
for charitable purposes, as they deal with those for other 
lawful purposes. 

At the same term, a boundary case between Florida 
and Georgia was determined, Taney giving the opinion, 
while four justices dissented. 80 He held that the United 
States, as proprietor and grantor of the lands in the 
disputed territory, may bring evidence to establish the 
boundary claimed by the United States. The omission 
of any regulation made by Congress under the power 
to exercise jurisdiction between States, did not, the 
Court repeated, deprive the Supreme Court of jurisdic- 
tion. The general rule and usage of courts was adopted. 
The Court further said that the United States need not 
be made a party, even though it has an interest; but 
that the Federal Attorney General, in his official capac- 

78 McLean, Curtis, Campbell and Daniel. 
79 17 Howard 477. 

80 Fremont v. U. S., 17 Howard 542. 17 Howard 232 at 258. The matter 
had previously come before the Court in 11 & 12 Howard. 



314 ROGER BROOKE TANEY 

ity, could not conduct a suit for a State. 81 In a case 
involving land titles in California 82 the Court had for 
consideration the title to a grant of 10 square leagues 
made by the Mexican Government for meritorious 
services, which land had later been surveyed under the 
laws 01 the United States, since Indian troubles had made 
it dangerous to survey the land under Mexican rule. 
Alvarado, the grantor, sold the tract to General Fremont, 
whose title to it was confirmed. 

The distribution of the estate of Robert Oliver of 
Baltimore caused Taney to dissent from the Court's 
findings in Williams v. Gibbes. 83 The effect of a Mary- 
land decree in Chancery, as to the distribution of a 
common fund, to one not guilty of laches, nor party to 
the decree, was to be determined. Taney had differed 
from the Court in its previous decision, but conformed 
to the decision and dismissed the case, when it came 
back to him at the Circuit Court. " It appears, however, 
by the opinion just delivered," Taney wrote, "that I 
was mistaken and placed an erroneous construction on 
the opinions formerly delivered," consequently, he gave 
the reasons for his acts and, with proud dignity, thus 

81 Page 270. 

82 Minor decisions at this term are: (1) Bruce v. U. S., 17 Howard 437 
(Accounts and bond of an Indian agent) (2) Poydras v. Treas'r of La., 17 Howard 
1 (A Citation to a State on a writ of error against a judgment won by the 
Treasurer, the State not being a party on the record, should be sent him and 
not the Governor or Attorney General) (3) Shields v. Thomas, 17 Howard 3 (the 
amount needed to give the Court jurisdiction, is the total sum due and if it be 
over $2,000.00 jurisdiction attaches, though the share of each complainant is 
less than that amount) (4) Barrebean v. Brant, 17 Howard 43 (Abatement) 

(5) Bank of Tenn. v. Horn, 17 Howard 157 (Lien in La. on lands of debtors) 

(6) Peck v. Sanderson, 17 Howard 178 (Collision of vessels) (7) U. S. v. Seaman, 
17 Howard 225 (Mandamus refused to compel Superintendent of public print- 
ing to place a document in the hands of the printer of the Senate, rather than 
in those of the printer of the House.) 

83 18 Howard 477. 



ROGER BROOKE TANEY 315 

closed his opinion: 84 "With all the habitual respect 
which I feel for the judgment of my brethren, the 
opinion I held at the time remains unchanged." 85 

The opinions rendered by Taney at the December 
term of 1855 are unimportant. In United States v. 
Booth 86 Taney held that, when the Clerk of a State 
Supreme Court neglects, or refuses, to make a return 
to a writ of error, the Court will lay a rule on him to show 
cause why the return should not be made. Taney 
concurred with the final decision in the Wheeling Bridge 
Case. 87 

These were the halcyon days of Taney's life. Van 
Santvoord, wrote at this time in the "Lives of the Chief 
Justices:" 88 "At the head of the procession" of the 
justices in their black silk gowns at the opening of court, 
"you observe a tall, thin man, slightly bent with the 
weight of years, of pale complexion and features some- 
what attenuated and careworn, but lighted up by that 
benignant expression, which is indicative at once of a 
gentle temper and a kindly heart. With a firm and 

84 21 Howard 506. 

85 18 Howard 420 at 462. Minor opinions at this term are: (l) Greeley's Ad- 
ministration v. Burgess, 18 Howard, 413. (Taney dissented from the view that 
was not necessary to set forth specifically the reasons on which a charge against 
appraisers of goods was made). (2) Maxwell v. Newbold, 18 Howard 511. 
(Jurisdiction. Question must actually have arisen in a State Court, and the 
clause of the Constitution and the law involved must be certified to the Court 
that what was claimed may be seen and whether it was denied). (3) Stairs v. 
Peaslee, 18 Howard, 521. (Appraisal of value of cutch imported. A product 
of India shipped from Halifax to Boston, is to be appraised at its value in 
London and Liverpool, its chief markets. The term "country" embraces all 
the possessions of the State.) (4) Hudgins v. Kemp, 18 Howard, 530. 
(Appeal Bonds). 

86 1st ed. 1854 p. 522-525, 2nd ed. revised by Wm. N. Scott, appeared in 
1882: 

87 Tyler, p. 469. 

88 Tyler, p. 320. 



316 ROGER BROOKE TANEY 

steady step," he moves to his seat and turns to 
the audience piercing eyes "beneath the dark mass of 
hair which overhangs the forehead of the tall, thin, 
venerable, old man." 

He disliked personal differences, and used his good 
offices in 1848 to harmonize the Reporter and the Clerk 
of the Court, when they had fallen out with each other, 89 
writing Mr. Peters, the Reporter, "I will see, when we 
meet again, if there is not a place left for the peace- 
maker — for a peacemaker who sincerely respects and 
and esteems both of you; and who would do much 
to reestablish friendly relations between you." 

In the next year, General Zachary Taylor wrote 
Taney, 90 requesting that he administer the presidential 
oath; not only in compliance with custom, but also to 
"give expression to the high respect I entertain for the 
Supreme Bench and its august presiding officer." 
Taney, with equal courtesy, replied, expressing his 
pleasure at performing the ceremony and finding the 
duty "more agreeable, because the high trust to which 
you are called has been spontaneously bestowed by the 
American people upon a citizen already so eminently 
distinguished for the able and faithful discharge of great 
public duties." 

His former adversaries had become friendly. Webster 
in an address at the Pilgrims' Festival in New York in 
1850, 91 said that we are Protestants, but a Roman 
Catholic is Chief Justice and no man imagines that the 
"administration of public justice is less respectable or 
less secure." 92 Clay had long since buried his hostility. 

89 Quoted in 67 Catholic World 396. 

90 Tyler, p. 317. 

91 Tyler, p. 318. 

92 On October 27, 1851, he was present at the laying of the corner stone 
of the House of Refuge in Baltimore, Scharf 's Chronicles of Baltimore. 



ROGER BROOKE TANEY 317 

William H. Seward asked the privilege, in January 1851, 
of inscribing to Taney a speech recently delivered on the 
French spoliation claims, both because he believed that 
Taney would approve of its sentiments 93 and "because 
it would be an expression of the high regard which, in 
common with the whole American people, I entertain 
for you, as head of the Judiciary Department. " Taney 
declined the request, as he was "very unwilling to have" 
his "name in any way connected with a measure pending 
before the Legislative or Executive Departments of the 
Government," lest his so doing "might be construed 
into interference." 94 

Judge Taney's youthfulness of spirit, and his 
approachability by young people, are shown most 
pleasingly in a letter now in the collections of the 
collections of the Maryland Historical Society, written 
by him to Mr. J. B. Noel Wyatt, on March 17, 1852, 
when Mr. Wyatt was four years old, and Judge Taney 
was 75. Mr. Wyatt's mother had sent the Judge a 
bottle of old Madeira wine, on the occasion of Taney's 
birthday, in the name of her son, as the two families 
were, at that time, in very close and intimate friendship. 
In reply, Judge Taney wrote: 

My dear Jimmie 

I thank you for your Birthday present, and shall drink a glass 
of it today to your health. And when you become seventy five 
years old, as I am today, you will know how pleasant it is to be 
remembered on your Birthday by a young friend — the representa- 
tive of much matured older ones: some living, some dead. 

You will, I am sure, prove yourself worthy of them. And that 
you may always do so, is the sincere prayer of your friend, 

R. B. Taney. 

Mr. J. Bosley Wyatt. 

98 Letters and Times of the Tylers by L. G. Tyler I 497. 
M Tyler, p. 322. 



318 ROGER BROOKE TANEY 

In 1855, at the Maryland Institute in Baltimore, 
Ex-president Tyler 95 said that he had voted in the United 
States Senate against Taney as Secretary of the Treasury ; 
but " had I known him, as I have since in his exalted office 
of Chief Justice of the United States, maugre any dis- 
crepancy of opinion which might have existed between 
us, there was no office, however exalted, either in the 
gift of the Executive or the people, for which I would 
not promptly have sustained him." 

Samuel Tyler, who subsequently became Taney's 
biographer, was practicing law at Frederick in this 
period and became much interested in law reform, 
especially in regard to the procedure and pleading of 
the courts. Having made an elaborate report upon the 
subject to the State legislature, he sent a copy thereof 
to Taney, who acknowledged it with an interesting 
letter on June 12, 1854. 96 He declined to examine the 
report; for, at his time of life, he felt the labors of the 
Supreme Court session and required "repose and relaxa- 
tion from business to regain my strength." To ex- 
amine the report "in all its bearings" would "occupy 
nearly the whole summer." "The task of reforming — 
in other words of radically changing — the system of 
pleading, which is interwoven with the Common Law 
itself, is one of extreme difficulty and delicacy." Taney 
was not convinced of the success of the experiments in 
England and in some of the United States. "For more 
disputes arise as to the meaning of words in new com- 
binations and new modes of averment; while in Common 
Law pleading, as it now stands, the ordinary counts in 

95 Tyler later prepared a treatise to uphold the simplified pleading, and 
sent Taney a copy of it, receiving from him a courteous and complimentary 
note of acknowledgment in return. Tyler, p. 324. 
96 Tyler, p. 16. 



ROGER BROOKE TANEY 319 

a declaration and ordinary pleas have a certain definite 
form, which conveys a certain definite meaning, about 
which lawyers can never doubt, or dispute." On the 
other hand, Taney thought that the Courts, long ago, 
ought to have used the power 

given to them by the Legislature to give judgment according to the 
right of the matter, without regard to matters of form; and yet 
they obstinately (I must say), continued to treat as a matter of 
substance, what evidently was nothing but form, merely because 
it was called substance in some of the old law books. I fear they 
will continue to do so, without some specific direction from the 
Legislature. But when that direction is given, it will require the 
greatest care and consideration, to preserve all that is really 
essential to the common law and trial by jury and dispense with 
everything else. For, certainly, the proceedings ought to be so 
molded that the party having right on his side, should not be 
defeated by technicality, or nicety in pleading. But to do this 
by legislation, and yet preserve, in full vigor and usefulness, the 
great principles of the common law and trial by jury (without 
which, in my judgment, no free government can long exist), will 
require much reflection and care in matters of detail, and great 
perspicuity in language. 97 

In the summer ol 1854, Taney went to Old Point 
Comfort for his vacation and there began writing an 
autobiography. 98 In 1855, he repeated this visit 99 and 
was there at the time of the yellow fever epidemic at 
Norfolk. Mrs. Taney caught the disease and died on 
September 29, and the youngest daughter, Alice, died 
on the following day. Taney bore up bravely under this 

97 Tyler, p. 326; Bookman, February, 1918, p. 711. 

98 Tyler prints an interesting letter of condolence from a negro slave of the 
Key family, p. 328. 

99 B. R. Curtis Life, I, 240. B. R. Curtis, Professional and miscellaneous 
Writings, Vol. II, p. 336. 



320 ROGER BROOKE TANEY 

heavy double blow. When Mr. Justice Curtis wrote 
to condole with him, he replied: 

It has pleased God to support me in the trial, and to enable me 
to resign myself in humble submission to His will. And I am 
again endeavoring to fulfil the duties which may yet remain to 
me in this world. But I shall enter upon those duties with the 
painful consciousness that they will be imperfectly discharged. 
The chastisement with which it has pleased God to visit me has 
told sensibly upon a body already worn by age, as well as upon 
the mind, and I shall meet you with broken health and with a 
broken spirit. 100 

Of this autobiography, George T. Curtis wrote that 
it was "one of the most beautiful pieces of that kind of 
writing that I know of in the English language. The 
late Chief Justice was master of a singularly graceful 
and easy style, perfectly perspicuous and correct." 101 

Mr. Justice Benjamin R. Curtis was appointed to the 
Bench of the Supreme Court in the year 1851, when 
Taney was seventy-three years old, and retired from 
the Bench in 1857, largely in consequence of the Dred 
Scott decision, which caused the relations between him 
and Taney to become strained. When Taney died, 
however, Curtis presented resolves at a meeting of the 
Boston Bar, held upon October 15, 1864, 102 to the effect 
"that the members of this Bar render tribute of their 
admiration and reverence for the preeminent abilities, 
profound learning, incorruptible integrity, and signal 
private virtues exhibited in the long and illustrious 
judicial career of the late lamented Roger B. Taney." 

In his remarks, made in support of this resolution, 
Mr. Curtis referred to the statement that for forty 

100 Reviewing Van Santvoord's Lives of the Chief Justices, 27 So. Q. R. 331. 

101 Pages 362-363. 
t° 2 Tyler, p. 509. 



ROGER BROOKE TANEY 321 

years, Taney's death might have always been expected 
within six months and that Taney had made such an 
impression on Curtis, when the latter first became 
judge. 

His tall, thin form, not much bent with the weight of years, 
but exhibiting, in his carriage and motions, great muscular weak- 
ness, the apparent feebleness of his vital powers, the continual and 
rigid care necessary to guard what little health he had, strongly 
impressed casual observers with the belief that the remainder of 
his days must be short. But a more intimate acquaintance soon 
produced the conviction that his was no ordinary case, because he 
was no ordinary man. An accurate knowledge of his own physical 
condition and its necessities braced and vivified the springs of 
life — a temper, which long discipline had made calm and cheerful, 
and the consciousness that he occupied and continued usefully to 
fill a great and difficult office, whose duties were congenial to him, 
gave assurance, which the event has justified, that his life would 
be prolonged much beyond the allotted years of man. 

While Curtis sat with Taney on the Bench, no "in- 
firmity of the mental powers" of the Chief Justice was 
manifest. 

Memory is that faculty which first feels the stiffness of old age. 
His memory was, and continued to be, alert and true as that of 
any man I ever knew. In consultation with his brethren, he 
could, and habitually did, state the facts of a voluminous and 
complicated case with every important detail of names and dates, 
with extraordinary accuracy, and, I may add, with extraordinary 
clearness and skill, and his recollection of the principles of law 
and of the decisions of the Court over which he presided was as 
ready as his memory of facts. 

He had none of the querulousness which too often accompanies 
old age. There can be no doubt that his was a vehement and 
passionate nature, but he had subdued it. I have seen him sorely 
tried, when the only observable effects of the trial were silence and 



322 ROGER BROOKE TANEY 

a flushed cheek. So long as he lived, he preserved that quietness 
of temper and that consideration for the feelings and wishes of 
others which were as far as possible removed from weak and 
selfish querulousness. 

Down to the last term in which he sat on the 
Bench, his presence was felt to be as important as at 
any period of his life. Curtis remembered the general 
impression in New England at the time of Taney's 
appointment as Chief Justice "that he was neither a 
learned nor a profound lawyer. This was certainly a 
mistake. His mind was thoroughly imbued with the 
rules of the Common Law and of equity." Curtis 
found, him, the 

master of all that peculiar jurisprudence which it is the special 
province of the Courts of the United States to administer and 
apply. His skill in applying it was of the highest order. His 
power of subtle analysis exceeded that of any man I ever knew, 

but in his case it was balanced and checked by 

excellent common sense and by great experience in practical 
business, both public and private. His physical infirmities dis- 
qualified him from making those learned researches, with the 
results of which other great judges have illustrated and strengthened 
their written judgments, but it can be truly said of him that he 
rarely felt the need of them. The same cause prevented him 
from writing so large a proportion of decisions as Marshall did. 
As a result of this fact, his real importance in the Court may 
not have been appreciated. The surpassing ability of the Chief 
Justice and all his great qualities of character and mind were 
more fully and constantly exhibited in the consultation room, 
while presiding over and assisting in the deliberations of his 
brethren, than the public knew, or can ever justly appreciate. 
Then his dignity, his love of order, his gentleness, his caution, his 
accuracy, his discrimination, were of incalculable importance. 
The real intrinsic character of the tribunal was greatly influenced 
by them and always for the better. 



ROGER BROOKE TANEY 323 

How he presided over the public sessions of the Court, some 
who hear me know. The blandness of his manners, the prompt- 
ness, precision, and firmness which made every word he said 
weighty, and made very few words necessary, and the unflagging 
attention which he fixed on every one who addressed the Court, 
will be remembered by all. 

But all may not know, that he had other attainments and 
qualities important to the prompt, orderly, and safe dispatch of 
business. Under Marshall, a " somewhat loose" administration 
of the practice of the Court had prevailed, for the amount of 
business was small. "No considerable inconvenience" resulted 
then, "but when the docket became crowded with causes and 
heavy arrears were accumulated, it would have been quite other- 
wise." Taney "made himself entirely familiar with the rules of 
the courts and with the circumstances out of which they had 
arisen. He had a notable aptitude to understand and, so far as 
was needed, to reform the system. It was almost a necessity of 
his character to have it practically complete. It was a. necessity 
of his character to administer it with unyielding firmness. 

He uniformly wrote the opinions of the Court upon new points 
of its practice. This was a very important fact, for the practice 
of the Court involved not merely the orderly and convenient 
conduct of this vast diversified business drawn from a territory so 
vast, but questions of constitutional law running deep into the 
framework of our complicated constitutional system. Upon this 
entire subject, the Chief Justice was vigilant, steady, and thor- 
oughly informed. 

On the only important occasion which I had the misfortune to 
differ with the Chief Justice on such points, I thought he, and 
they who agreed with him, carried the powers of the Court too 

far The great powers intrusted to the Court by the 

Constitution and laws of his country, he steadily and firmly up- 
held and administered and, .... showed no disposition 
to exceed them. 

He was as absolutely free from the slightest traces of vanity 
and self conceit as any man I ever knew. He was aware that 
many of his associates were ambitious of doing this conspicuous 



324 ROGER BROOKE TANEY 

part of their joint labor — "the writing of opinions — and he per- 
mitted them to do so, writing fewer ones himself for that reason." 
The preservation of the harmony of the members of the court 
and of their good will to himself was always in his mind. 

His opinions were characterized by that purity of style and 
clearness of thought which marked whatever he wrote or spoke 
and some of them must always be known and recurred to as 
masterly discussion of their subjects. 

Curtis closed this noble tribute, by saying that 

It is one of the favors which the Providence of God has bestowed 
upon our once happy Country, that for the period of 63 years 
this great office has been filled by only two persons, each of whom 
has retained to extreme old age his great and useful qualities 
and powers. The stability, the uniformity and usefulness of our 
national jurisprudence are in no small degree, attributable to 
this fact. 

Just about this time, a writer in the Southern 
Quarterly Review spoke of Taney's judgments 

as models of judicial style and so clear and cogent in their logical 
power that those even who hesitate at the conclusions can scarcely 
see where to detect the error. Those who have been so fortunate 
as to hear Judge Taney from the bench are well acquainted with 
that inimitable manner, that patient, never- varying attention, 
that instant appreciation of an idea or an argument, that combi- 
nation of admirable qualities — which unite to make him pre- 
eminently distinguished as a presiding judge. 

The same writer, also stated : 

The issue between the North and the South on the subject of 
slavery affords an illustration of the necessity for a perfectly 
independent judiciary and shows how difficult it is for a judge, 
responsible to the people of a particular section, to decide with 
impartiality, where the conflicting claims of two sections are 



ROGER BROOKE TANEY 325 

involved. The federal judiciary in its freedom from all bias, has 
been the great trust of the people of the South for the preservation 
of those rights, which only need for their support a just interpreta- 
tion of the Constitution and an unprejudiced judgment on the 
principles of Law. 

The tempest of popular feeling against Southern institutions 
seems to have overwhelmed, in the North, every political barrier 
against the invading flood of aggression. To the swelling tide, 
nothing seems to be opposed but the barriers of judicial indepen- 
dence, which the great architects of the Constitution have set up. 

In the next chapter, we shall see how the tide beat 
against that barrier. 



CHAPTER XII 

The Dred Scott Case (1856-1857) 
i. history of the case and its decision 

On November 2, 1855, Mr. Justice John McLean of 
Ohio, the senior member of the Supreme Court, upon 
whose bench he sat from 1829 until his death in 1864, 
wrote to his friend, John Teesdale, in Cincinnati, 1 "next 
winter, a case will be before the Court, which involves 
the right of a slaveholder to bring his slaves into a free 
State for any purpose whatever." 

The Supreme Court has decided that slavery exists, by virtue 
of the municipal law, and is local. The Constitution gives Con- 
gress no power to institute slavery, then there can be no slavery 
in the territories, for there is no power but Congress which can 
legislate for the Territories. Squatter sovereignty is not a part 
of our government. When a people of a territory come to form a 
State government, they have a right to say whether the State 
shall be a free, or a slave State. And there is no more danger of a 
free territory becoming a slave State, than there is of a free State 
becoming a slave State. It is a question which belongs to the 
people of a State, and there is no danger in leaving a territory open 
to be populated by the people of the Union. More than five will 
settle it from the free States, where one settler will come from the 
slave States. 

The question of slavery in the territories was the burn- 
ing one in politics. The passage of the Kansas-Nebraska 
bill in 1854, virtually annulling the Missouri Compro- 
mise and weakening the force of the Compromise of 
1850, brought to birth the Republican party, whose 

1 Bibliotheca Sacra (1899), vol. 56, p. 737. 

326 



ROGER BROOKE TANEY 327 

platform on the subject took a position similar to that 
just quoted from McLean. The Know Nothings and 
the remnant of the Whigs vainly endeavored to cling 
to the compromises of the past. The extreme Southern 
Democrats claimed that slaves might be taken into any 
territory, while the Douglas Democrats maintained 
that the settlers, while the Territorial status still con- 
tinued, might exclude, or admit slavery, as they wished, 
through their "popular sovereignty." The very foun- 
dations of the Republic rocked in the conflict, and the 
spirit of secession and disunion, thought to have been 
t) exercised in 1850, again raised its head. 

Was it possible for any power in the country to settle 
the question finally? If any power could do this, was 
it not the august one of the United States Supreme 
Court? At that time, in addition to McLean and 
Taney, whose term had begun in 1836, there were seven 
other justices, all but one of whom had been appointed 
by Democratic Presidents. James M. Wayne 2 of 
Georgia, had been appointed in 1833, and loyally 
remained a member of the Court throughout the Civil 
War, and until his death in 1867. John Catron of 
Tennessee had been appointed in 1837, and continued 
on the Bench, until his death in 1865. Peter V. Daniel 
of Virginia was appointed in 1841, and died, while still 
on the Bench, in 1860. Samuel Nelson of New York 
was appointed in 1845, and was the last survivor of the 
Court as constituted at this time, living until 1872. 
Robert G. Grier of Pennsylvania had been appointed in 
1846 and continued as a justice, until his death in 
1869. Benjamin R. Curtis of Massachusetts, the only 

2 Wayne's relations with Taney were especially intimate. An undated 
letter from Taney, addressed to Wayne at Barnum's Hotel is extant, requesting 
that Wayne take New Year's dinner with Taney. 



"7 



328 ROGER BROOKE TANEY 

Whig Justice, had been appointed in 1851 and resigned 
in 1857. James A. Campbell of Alabama was the 
youngest in point of service, having been appointed in 
1853. He was the only Justice to join the cause of the 
Confederate States in 1861. Five judges came from 
Slave States, and four from free States. As a body 3 of 
men, they have been well characterized as "high and 
capable men with a high sense of honor," but "neces- 
sarily swayed more or less by their political training 
and sympathies." 

Before this tribunal, there came the case of Scott v. 
Sanford, 4 better known as the Dred Scott Case. Scott 
was a negro slave of Dr. John Emerson, a surgeon in 
the United States Army, who took him in 1834 from 
Rock Island, Missouri to -Illinois, and two years later, 
to Fort Snelling, near the present city of St. Paul, 
Minnesota, when ordered there on government service. 
The first place was in the old Northwest Territory, and 
the second was in the Louisiana Purchase, north of the 
Missouri Compromise Line. 5 While in Minnesota, Scott 
married Harriet, another slave belonging to Emerson, 
and had a daughter, Eliza, born on a steamboat, north 
of the north boundary of Missouri. 6 

After about two years, Dr. Emerson returned to 
Missouri, taking Scott and his family with him. A 

1 Balch "A World Court," p. 111. 

4 19 Howard, also separately printed. The name of the appellee is 
usually printed erroneously, Sandford. 

8 The history of the case has been studied with great care by F. N. Hill, 
in his "Decisive Battles of the Law." Harper's Magazine for July, 1907, 
at page 244. See also 8 McMaster's U. S.; p. 278. Connor's Life of J. A. 
Campbell, pp. 54 &ff. gives a careful study of the case as far as Campbell w» 
concerned. 

6 Blair, in his Brief before the Supreme Court, raised the question of the 
status of this child, but the Court made no reference to it in any of the opinions. 
Cf. Ewing Legal and Historical Status of the Dred Scott Case, p. 107. 



ROGER BROOKE TANEY 329 

second daughter, Lizzie, was born to Scott and his 
wife in Jefferson Barracks, after the return. Some time 
later, Dr. Emerson died, in Davenport, Iowa, leaving his 
property to his wife in trust for his child. Mrs. Emer- 
son coui i not, therefore, emancipate Scott, who was then 
about thirty-four years old and she removed to Massa- 
chusetts, leaving him in St. Louis, where he became a 
charge upon the bounty of Mr. Taylor Blow, who 
was a Southern sympathizer and was a son of Scott's 
old master in Virginia, who had sold him to Dr. Em- 
erson. At a loss to know what to do with Scott, it is 
thought that Blow brought him to the law firm of 
Field and Hall, in the hope that they could find 
some solution of the difficulty. They brought suit, 
claiming Scott's freedom, and with the probable ulterior 
purpose of paving the way for a further suit against the 
Emerson estate for twelve years' wages, if Scott had 
been illegally held in servitude. 7 Frederick T. Hill 
doubts whether Mrs. Irene Emerson would otherwise 
have defended the suit brought against her by this 
wholly illiterate negro, in the autumn of 1846, upon the 
technical grounds of false imprisonment and assault 
and battery. A second suit by him against Emerson's 
heirs, was docketed in 1847, as was one brought by his 
wife and children. In April, 1847, the Circuit Court 
Judge instructed the jury to bring in a verdict for the 
defendant. A new trial was granted by another judge, 8 
and, on January, 1850, a jury gave a verdict for Scott. 
The Emerson estate then appealed to the State Supreme 
Court, and Scott was placed in the hands of the sheriff, 

7 4 Hart's "Am. Hist, as told by Contemporaries," 122, prints some of the 
papers in this case. 13 Am. State Trials 220 also prints papers in this case. 

8 Vide 11 Mo. Rep. 413, for unsuccessful appeal from order for the new 
trial. 



330 ROGER BROOKE TANEY 

to be hired out, an account for his wages being given to 
the successful party to the suit. The payment of the 
costs was guaranteed by a bond signed by Blow's son- 
in-law, Joseph Charless. In March 1852, the Missouri 
Supreme Court took up the case, 9 and decided against 
Scott's freedom. There was a dissenting opinion, and 
Hill well writes that both judges "displayed more 
temper than erudition." "The Court was a small one, 
numbering only three justices. Nicolay and Hay 10 
considered that the majority opinion bore internal 
evidence that it was prompted, not by considerations of 
law and justice; but by a spirit of retaliation, growing 
out of the ineradicable antagonism between freedom and 
slavery," while the dissenting Judge, Chief Justice 
Gamble, replied to "this partisan bravado" with a 
"dignified rebuke." 

Meanwhile, Mrs. Emerson had remarried, her second 
husband being Dr. Calvin C. Chaffee of Springfield, 
Massachusetts, an anti-slavery member of Congress. 
Soon after the final decision in Missouri, Chauvette 
E. L. Beaume, a lawyer related by marriage to Blow, 
approached Roswell M. Field, in reference to having a 
suit for freedom brought by Scott in the Federal 
Court. Field agreed to do so, and to avoid bringing 
Mrs. Chaffee into the case, the ownership of Scott was 
transferred to her brother, John F. Sanford of New 
York, whose name is wrongly spelled "Sandford," by 
the Reporter. Suit was then brought for assault against 
Sanford, in the United States Circuit Court, federal 
jurisdiction being secured, because Sanford did not live 
in Missouri. This averment was traversed by Sanford's 
attorneys by a plea in abatement, denying that the 

9 It is reported in 15 Mo. Repts. 582. See also 13 Am. State Trials 233. 

10 Life of Lincoln, Vol. II, p. 61. 



ROGER BROOKE TANEY 331 

Court had jurisdiction, on the ground that Scott was a 
descendant of an African slave and born in slavery. The 
Circuit Court overruled the plea in abatement, but found 
for the defendant on the merits of the case. 

The case was heard at the April term of 1854, and 
in May the Judge instructed the jury to bring verdict 
against Scott. An appeal 11 was then filed, Blow acting 
as Scott's bondsman. Garland and Morris had pre- 
viously represented the owner, but they were now 
succeeded by Henry S. Geyer, a native of Frederick 
County, Maryland, who had recently defeated Thomas 
H. Benton in a contest for election to the United States 
Senate, and who was a leader of the St. Louis Bar. 
"Seeing how deeply the country was interested in the 
decision," 12 Reverdy Johnson volunteered to assist 
him, and they argued the case for the master before 
the Supreme Court. 

On May 15, 1854, the Kansas-Nebraska Bill was 
passed, virtually repealing the Missouri Compromise. 
On May 25, Field wrote Montgomery Blair that he 
believed that it would be better for the country to have 
the vexed question of slavery restriction decided con- 
trary to his wishes, and in favor of the slaveowner, than 
not at all. On December 24, he wrote Blair again: 

A year ago, I was employed to bring suit for Scott. The ques- 
tion involved is the much vexed one, whether the removal by the 
master of his slave to Illinois, or Wisconsin, works an absolute 

emancipation If you, or any other gentleman at 

Washington, should feel interest enough in the case as to bring it 
to a hearing and decision by the Court, the cause of humanity may 
perhaps be subserved, and, at all events, a much disputed ques- 
tion would be settled by the highest Court of the nation. 

11 Montgomery Blair, see 13 Am. State Trials 242, and H. A. Garland 
signed the agreed statement of facts. 

12 Tyler, p. 388. 



332 ROGER BROOKE TANEY 

Blair consented, but the above given narrative shows 
clearly that he and his family were not responsible for 
the suit, as has been stated. The case was argued at 
the December Term of 1855, on February 11, 1856, 
and was ignored by the newspapers. In the "discus- 
sions at the conferences of the judges" there was "much 
division among them," we are told by Justice 
Campbell, 13 especially as to whether the plea in abate- 
ment, which concerned Scott's status as a "negro of 
African descent," whose ancestors had been imported 
as slaves, was for consideration. According to Campbell, 
McLean, Catron, Grier, and Campbell, forming a mi- 
nority of the court, held that his plea was not open for 
examination, because a demurrer had been sustained 
against it. Taney, Wayne, Daniel, and Curtis held 
otherwise, and Nelson, who inclined to that view, pro- 
posed a reargument of the case at the next term, which 
proposition was agreed to without objection. 

On April 8, Mr. Justice Curtis wrote George Ticknor 14 
that "the Court will not decide a question of the Mis- 
souri Compromise — a majority of the judges being of the 
opinion that it is not necessary to do so. This is 
confidential." On May 12, 1856, a reargument of the 
case was granted. 

13 Letter of November 24, 1870. Tyler, p. 382. McHenry Howard, Esq., 
on May 1, 1919, wrote that "S. Teackle Wallis told me, about 1875, that his 
friend, George S. Hillard, a well known literary man of Massachusetts, told him 
that on some public, or semi-public occasion, in New England, Justice Curtis, 
of the Supreme Court, said that, in the consultation over the decision to be 
rendered in the Dred Scott Case, the Justices became much excited and rose to 
their feet, arguing and gesticulating— and Chief Justice Taney rapped on the 
table and said: "Brothers, this is the Supreme Court of the United States. 
Take your seats." " And," said Curtis, "we sat down like rebuked schoolboys." 

14 B. R. Curtis Life, I, 180. Howe's "Political History of Succession," 
Ch. XV. treats of the case. 



ROGER BROOKE TANEY 333 

Blair wrote to the Editor of the National Intelligencer, 
on December 24, that he had tried in vain to gain another 
distinguished counsel to aid him in the case. Finally, 
he secured George Ticknor Curtis 15 and he argued the 
"question of the power of Congress to prohibit slavery 
in the Territories," as Justice Curtis wrote George 
Ticknor, "in a manner exceedingly creditable to him- 
self and the bar of New England. Judge Catron told 
me it was the best argument on a question of constitu- 
tional law he had heard in the Court — and he has been 
here since Jackson's time." 16 Curtis added: "Our aged 
Chief Justice, who will be eighty years in a few days, 
and who grows more feeble in body but retains his 
alacrity and force of mind wonderfully, is not able to 
write much." 

Blair forced the fighting on a broad ground in his 
brief, asking whether Congress had power to prohibit 
slavery in the Territories, or whether the Constitution 
carried slavery into the Territories. The intermediate 
position of squatter sovereignty, he declared to be wholly 
ad captandum, not resting upon any basis recognized 
by the Supreme Court. The question "involves its 
present importance," to use his words, "from the fact 
that it is felt to involve the character of the country as 
a free or slave country, and a revolution in the ideas on 

15 George T. Curtis (B. R. Curtis, Life, I, 249) wrote in after years that 
Blair "who had sole charge of the case for Scott," asked Curtis to assist in the 
argument, about three days before the case was called, and that he argued the 
affirmative of the proposition that Congress could prohibit the existence of 
slavery in the territories, not discussing the other question whether a free 
negro could be a citizen. Curtis's argument was printed, at the request of 
Crittenden of Kentucky and Badger of North Carolina, so that he could 
proudly remark that some of the ablest minds in the South did not regard it as 
supremely important to their sectional interests to have the Missouri Com- 
promise declared unconstitutional. 

16 B.R. Curtis, Life, I, p. 194. 



334 ROGER BROOKE TANEY 

which the government was formed, which must subvert 
it, if acquiesced in." 

He discussed four questions, viz.: (1) whether the 
plea to the jurisdiction, alleging that the plaintiff was a 
negro, and, therefore, not able to maintain a suit as a 
citizen of Missouri, was waived by pleading to the merits, 
after a demurrer sustained; (2) whether a negro is a 
citizen in such a sense as to enable him to maintain an 
action in the Courts of the United States; (3) whether 
the facts stated in the agreed case entitle the plaintiff 
and his family, or either of them, to freedom; and (4) 
whether the Missouri Compromise is valid. 17 He argued 
these points on December 18, 1856, and the author of 
B. R. Curtis's Life 18 tells us that Sanford's counsel also 
elaborately argued the same 19 points. 

Alexander H. Stephens of Georgia was a Union man, 
and was anxious to settle the question of slavery in the 
territories, which was arousing the forces tending to- 
ward disunion. On December 15, 1856, he wrote his 
brother, Linton: 

I have been urging all the influence I could bring to bear upon 
the Supreme Court to get them postpone no longer the case on the 
Missouri restriction before them, but to decide it. 20 They take 
it up today. If they think, as I have reason to believe they will, 
that the restriction was unconstitutional, that Congress had no 
power to pass it, then the question — the political question, as I 
think, will be ended as to the power of the people in their terri- 
torial legislature. It will be in effect a res adjudicata. The 
only ground upon which that claim of power can then rest will 

17 Geyer, in his argument, maintained that a Territory was unappropriated 
land. 

18 Vol. I, page 206. 

19 The text states that he was Terry, — does the author mean Geyer? 

20 Johnston and Browne's Stephens, p. 316. Harper's Magazine, July, 1907, 
p. 251. 



ROGER BROOKE TANEY 335 

be General Cass's squatter sovereignty doctrine, i.e., that they 
possess the power, not by delegation, but by inherent right, and 
you know my opinion of that. 

He wrote his brother again, on January 1, 1857: 

Today, I send you the speech of Curtis in the Dred Scott Case 
before the Supreme Court. The speech, I think chaste, elegant, 
forensic, but I do not think it convincing. The case is yet un- 
decided. It is the great case before the Court, and involves the 
greatest question politically of the day. I mean that the questions 
involved — let them be decided as they may — will have a greater 
political effect and bearing than any other of the day. The 
decision will be a marked epoch in our history. I feel a deep 
solicitude as to how it will be. From what I hear, sub rosa, it will 
be according to my own opinions on every point as abstract politi- 
cal questions. The restriction of 1820 will be held unconstitu- 
tional. The judges are all writing out their opinions, I believe, 
seriatim. The Chief Justice will give an elaborate one. Should 
this opinion be as I suppose it will, "Squatter Sovereignty 
speeches" will be upon a par with "Liberty speeches" at the 
North in the last Canvass. 21 

Stephens had true prescience, but he was a little 
ahead of time. 

Other persons soon had the same idea. James Pike, 
the Washington correspondent for the New York 
Tribune, wrote his newspaper on January 5. 22 

The rumor that the Supreme Court has decided against the 
constitutionality of the power of Congress to restrict slavery in 
the Territories has been commented upon, in the most reserved 
manner, at this metropolis. It is very generally considered that 
the moral weight of such a decision would be at least equal to 
that of a political stump speech of a slaveholder or a doughface. 

21 Johnston and Browne's Stephens, p. 318. 

22 Pike, "First Blows of the Civil War," p. 355. 



336 ROGER BROOKE TANEY 

Many have expressed the opinion that the question would not 
be met by the Court, and numbers are still of that way of thinking. 
It makes but little difference to slavery whether it gets a decision 
in its favor, now, or after the public mind shall have had time to 
cool a little. But it would be best for antislavery that the de- 
cision should come now, while the popular heart is in a fused con- 
dition. The impression it would make would be deeper and more 
distinct and the whole series of proslavery aggressions and triumphs 
would then be burned into it together. The Congress, the Court, 
and the Executive would then take their proper positions of joint 
association in the mind of the people, as confederates in the work 
of extending the intolerable nuisance of slavery. It is, therefore, 
to be preferred that the judicial department shall now put itself 
actively upon the side of the slaveholders, while the mind of the 
country is warm and burning, rather than wait and do it by and 
by, when apathy shall have again overspread it. When a politi- 
cal scheme is to be furthered by judicial action, it is a thousand 
times better that action should be taken boldly; when every man, 
woman, and child have their eyes upon the Court, than to have that 
body steal silently and stealthily in the same direction. Judicial 
tyranny is hard enough to resist under ordinary circumstances, 
for it comes in the guise of impartiality and with the prestige of 
fairness. 

At first, however, the Court determined not to make 
a broad decision, but merely to decide the case on 
narrow grounds, and Justice Nelson was asked to write 
the opinion, limiting it to the " particular circumstances" 
of Dred Scott. 23 Wayne, who like Stephens, was a 
Georgian, became convinced, probably by his efforts 
after the second hearing, that the Supreme Court could 
quiet all agitation on the question of slavery in the 
Territories, by affirming that Congress had no power to 
prohibit it there. 24 "With entirely patriotic motives, 

* 3 Tyler, p. 384. 

24 Curtis's Life, I, 206. 



ROGER BROOKE TANEY 337 

and believing thoroughly that such was the law on this 
constitutional question, he regarded it as eminently 
expedient that it should be so determined by the Court. 
His frank avowals in conversation at the time," showed 
"that he regarded it as a matter of great good fortune 
to his own section of the country that he had succeeded 
in producing a determination on the part of a sufficient 
number of his brethren to act upon the constitutional 
question, which had so divided the people." He 
persuaded Taney, Grier, and Catron to take this view. 
Wayne's urgency on the other justices was great, and 
he "particularly suggested" 25 to Catron the ground 
upon which he concurred — that the Missouri Compro- 
mise conflicted with the Louisiana Treaty. Campbell 
and Nelson wrote, 26 in after years, that, after Nelson 
had written his opinion and in his absence, 27 Wayne, 
without giving notice to anyone, stated in the consulta- 
tion room "that the case had created public interest 
and expectation," and "proposed that the Chief Justice 
write an opinion on all of the questions, as the opinion 
of the Court. " This proposal was assented to. Nelson, 
however, refused to agree to this plan, and, when told 
of it, "gave notice" that he would read, as his own, the 
opinion he had written as that of the Court. Pressure 
from both sides urged the Court on, however, and it 
transpired that Justice McLean was taking a broad 
ground in his expected dissenting opinion, and would 
give comfort to the anti-slavery forces. Reverdy 
Johnson, in a letter, dated March 6, 1858, written to a 
public meeting, 28 claimed that the course of the dissent- 

28 Curtis's Life, I, 234. See Campbell on Curtis in 20 Wallace. Wayne's 
papers have been destroyed. 

26 Tyler, p. 384. 

27 Tyler, p. 385. 

28 B. R. Curtis, Life, I, 237.Tyler, p. 390. 



338 ROGER BROOKE TANEY 

ing justices made it the duty of the court to correct, 
to the whole extent of their power, what they believed 
to be the serious constitutional errors, which, if left 
unobstructed, would be fastened upon the government. 
James Buchanan had been elected President in the 
preceding November, and, on February 19, his old 
friend, Mr. Justice Catron, wrote him that the case 
had been before the Justices several times within the 
past week, and that Buchanan might safely say in his 
inaugural address that: 

The question involving the constitutionality of the Missouri 
Compromise line is presented to the appropriate tribunal to 
decide (to wit the Supreme Court of the United States). It is 
due to its high and independent character to suppose that it 
will decide and settle a controversy which has so long and so 
seriously agitated the country and which must ultimately be de- 
cided by the Supreme Court. And until the case now before 
it .... is disposed of, I would deem it improper to express 
any opinion on the subject. 29 

Catron continued his letter that "a majority of my 
Brethren will be forced up to this point by two dis- 
sentients" and asked Buchanan to write Mr. Justice 
Grier, who, like the President elect, was a citizen of 
Pennsylvania, "saying how necessary it is and how good 
the opportunity is to settle the agitation, by an affirma- 
tive decision of the Supreme Court, the one way or the 
other. He ought not to occupy so doubtful a ground as 
the outside issue — that admitting the constitutionality 
of the Missouri Compromise line of 1820, still, as no 
domicile was acquired by the negro at Fort Snelling and 
he returned to Missouri, he was not free. He has no 
doubt about the question on the main contest, but has 

29 Buchanan's Works, X, 106. I cannot find Justice Catron's papers. 



ROGER BROOKE TANEY 339 

been persuaded to take the smooth handle for the sake 
of peace." 

Buchanan wrote to Grier at once, as Catron requested, 
and received an answer dated February 23. 30 Buchan- 
an's letter had reached him on that day, and he had 
shown it to Wayne and Taney: "We fully appreciate 
and concur in your views as to the desirableness, at 
this time, of having an expression of the opinion of 
this Court, on this troublesome question. With their 
concurrence, I will give you, in confidence, the history 
of the case before us, with the probable result." Owing 
to the illness of a judge, the case had only lately been 
taken up in conference. The first question was as to 
the right of a negro to sue in the Courts of the United 
States. "The majority of the Court were of the opinion 
that the question did not arise on the pleadings and that 
we were not compelled to give an opinion on the matter. 
After much discussion, it was finally agreed that the 
merits of the case might be satisfactorily decided without 
giving an opinion on the question of the Missouri 
Compromise, and the case was committed to Justice 
Nelson to write the opinion of the Court, affirming the 
judgment of the court below, but leaving both those 
difficult questions untouched." Then it appeared that 
the two dissentients, especially Mc Lean, "were deter- 
mined to come out in long and labored dissent, includ- 
ing their opinions and arguments on both these 
troublesome points, although not necessary to a 
decision of the case. In our opinion, both these points 
are in the case, and may be decided." The majority 
felt now compelled to express an opinion upon the 
"powers of Congress and the validity of the Compro- 
mise." Nelson and Grier had refused to commit them- 

30 Buchanan's Works, X, p. 106. I cannot find Grier's papers. 



340 ROGER BROOKE TANEY 

selves. "The majority, including all the judges south 
of Mason and Dixon's line, agreeing in the result, but 
not in their reasons, as the question will be thus forced 
upon us, as I am anxious that it should not appear that 
the line of latitude should mark the line of division in 
the Court, I feel also that the opinion of the majority 
will fail of much of its effect, if founded on clashing and 
inconsistent arguments. " Consequently, Grier had con- 
versed with Taney and had decided to concur with him. 
He and Wayne would endeavor to have Daniel, Catron, 
and Campbell do the same: 

So that, is the question must be met, there will be an opinion of 
the Court upon it, if possible, without the contradictory views 
which would weaken its force. But, I fear, some rather extreme 
views may be thrown out by some of our Southern Brethren. 
There will, therefore, be six, if not seven (perhaps Nelson will 
remain neutral) who will decide the compromise law of 1820 to 
be of none effect. But the opinions will not be rendered before 
Friday, the sixth of March. 31 We will not let any others of our 
brethren know anything about the cause of our anxiety to produce 
this result, and, though contrary to our usual practice, we have 
thought it due to you to state to you, in candor and in confidence, 
the real state of the matter. 

On February 27, Mr. Justice Curtis wrote a true 
forecast of events to his uncle, George Ticknor, who was 
then in Europe: "The North is now quiet 32 after a 
sectional excitement such as was never before known; 
but I am greatly mistaken if events do not arouse it 
again to an exertion to overthrow what is called the 
'slave' power, even greater than that recently made." 

31 The weak state of Taney's health caused the postponement of the deci- 
sion. A recent article in 52 Am. Law Rev. 875, by Henry S. Forster, is entitled 
"Did the Decision in the Dred Scott Case Lead to the Civil War" and repro- 
duces this correspondence. 

32 Curtis, Life, I, p. 193. 



ROGER BROOKE TANEY 341 

He was right, and the Supreme Court was destined to 
liberate the genie from the bottle. 

Rumors spread as to the purport of the coming de- 
cision, and, on March 2, the New York Tribune, 33 from 
a "trustworthy source," predicted that the decision 
by a large majority would "sustain the extreme Southern 
ground," denying the constitutionality of the Missouri 
Compromise and that McLean and Curtis would be 
the only dissenters. 

Buchanan brought his inaugural address with him 
to Washington, and, after his arrival at the National 
Hotel there, made "no alterations" 34 except to insert 
"a clause in regard to the question then pending in the 
Supreme Court, as one which would dispose of a vexed 
and dangerous topic by the highest judicial authority 
of the land." When he read his address on March 4, 
he said: "A difference of opinion has arisen in regard 
to the point of time, when the people of a Territory shall 
decide" as to the admission of slavery for themselves. 

This is, happily, a matter of little practical importance, Be- 
sides it is a judicial question which legitimately belongs to the 
Supreme Court of the United States, 35 before whom it is now pend- 
ing and will, it is understood, be speedily and finally settled. To 
their decision, in common with all good citizens, I shall cheerfully 
submit, whatever this may be, though it has ever been my indi- 
vidual opinion that, under the Nebraska-Kansas Act, the ap- 
propriate period would be when the number of actual residents 
in the Territory shall justify the formation of a constitution, with 
a view to its admission as a State into the Union. 

33 Rhodes, II, 269. 

34 Letter of Buchanan's nephew, James Buchanan Henry, to George T. 
Curtis, in Curtis's Buchanan, II, 187. 

35 Buchanan's Works, X, 106. 



342 ROGER BROOKE TANEY 

This statement was one which almost anyone could 
have made who read the daily newspapers and any 
further information which Buchanan had, came from 
Catron and Grier; yet, after the decision, an unfounded 
and rather ridiculous charge of conspiracy between 
Taney and Buchanan was made by anti-slavery leaders, 
such as Lincoln. It was even felt necessary by Stephen 
A. Douglas, publicly, to deny that he had talked with 
Taney concerning the decision, before it was delivered. 36 

Mr. Justice Curtis never gave countenance to this 
charge, 37 and Rhodes, an unfriendly critic, 38 admits that 
the characters of Buchanan and Taney are proofs that 
"the import of the decision" was not communicated 
by the Chief Justice to the President elect, and that, 
with the former's "lofty notions of what belonged to an 
independent judiciary, he would have had no intercourse 
with the executive that could not brook the light of 
day." 

Reverence for the Supreme Court had never been 
higher than at the moment of the decision. On the 
very day of the inauguration, Caleb Cushing, the 
Attorney General, thus addressed the tribunal: "You 
are the incarnate mind of the political body of our 
nation." You are "the pivot, upon which the right 
of all — government and people alike — turn: or rather, 
you are the central light of constitutional wisdom, 
around which they perpetually revolve." 39 With such 
incense in their nostrils, there is little cause for wonder 

46 Lincoln's Works, I, 243 at Springfield, 111., before Republican convention 
which nominated him for Senator, 293, 303; at Ottawa, Illinois, August 21, 1858, 
joinl debate with Douglas, 419; at Quincy, Illinois, in joint debate 496. For 
disproof, if needed, see Tyler, p. 383 and ff . 

37 Life, I, 236. 

88 History, II, 269. 

39 Nicolay and Hay's Lincoln, vol. II, p. 70. 



ROGER BROOKE TANEY 343 

that Taney and the other majority justices believed, 
mistakenly, that the "public excitement" in reference 
to slavery in the Territories could be quieted by a judicial 
decision, and that they, though "required only to decide 
a question of private rights," rejecting for the occasion 
the sound rule of not mingling in political questions, 
should "thrust themselves forward to sit as umpires 
in a quarrel of parties and factions." 40 

On the fifth of March, Pike, in writing to the Tribune, 
thus referred to Buchanan's speech: 41 

This policy of planting the Federal Government on the side 
of an open, undisguised, entire devotion to the interests of slavery 
and demanding conformity thereto of all participants in its ad- 
ministration, has been gradually forcing its way, through fogs and 
murky darkness, its existence doubted and denied, whenever par- 
tisan interest required the denial; until, at last, this policy bursts 
upon the country and upon the world in the unaugural of Mr. 
Buchanan and in the coming decision of the Supreme Court upon 
the right of Congress to restrict slavery in the territory, with a 
distinctness and clearness as impressive and alarming as it is 
vivid. 

Taney's opinion was somewhat modified after it was 
read. In this present form, it covers 60 of the Reporter's 
pages devoted to this case. Corwin correctly states 
that what Taney wrote was "absurdly labeled" the 
Court's opinion, for, on most points of argument, there 
was no majority of the Court. 4 '' Before the decision 
was pronounced, 43 "Taney, both in character and 
ability," in Rhodes's opinion, "stood much higher than 
any other member of the court The 

40 Curtis' Life, I, 236. Nicolay and Hay's Lincoln, II, 71. 
41 " First Blows of the Civil War," p. 366. 

42 Doctrine of Judicial Review, p. 132. 

43 Rhodes' History of U. S., II, 254 to 266. 



344 ' ROGER BROOKE TANEY 

bait held out to his patriotic soul was that the court 
had the power and opportunity of settling the slavery 
question." His "opinion shows no weakness of mem- 
ory, or abated powers of reasoning That 

a man of the years of Taney could construct so vigorous 
and so plausible an argument was less remarkable than 
that a humane Christian man could assert publicly such 
a monstrous theory. Yet such work was demanded by 
slavery of her votaries. The opinion of Taney was but 
the doctrine of Calhoun announced for the first time 
in 1847, " 44 which "outraged precedent, history, and 
justice." Taney "committed a grievous fault," in 
taking a step which undermined "the very foundations 
of the State." "Patriotism and not self seeking im- 
pelled him," yet "the higher motive does not excuse the 
Chief Justice." His "argument impressed" Rhodes 
"with its power. It is inhuman. It was effectually 
refuted. But it was a great piece of specious reasoning, 
and, translated by Douglas into the language of the 
stump, it made the staple argument of Northern Demo- 
crats from this time to the war. ' ' 

Taney found two leading questions in this contro- 
versy, of the highest importance. First, had the Circuit 
Court Jurisdiction, and second, if so, was its judgment 
erroneous? He refused to admit that the plea in abate- 
ment was not before the Court, as the judgment thereon, 
in the Court below, was in Scott's favor, and held that 
Sanford had waived that defence, by pleading to the 
merits. 

The "peculiar and limited jurisdiction" of the United 
States Courts had to be considered, for the Government 
of the United States is "sovereign and supreme in its 
appropriate sphere of action, yet it does not possess all 

44 See Cong. Globe for February 19, 1847, p. 455 and App. 1848, p. 1178. 



ROGER BROOKE TANEY 345 

the powers which usually belong to the sovereignty 
of a nation." Consequently, the record must show 
affirmatively, that the Circuit Court had jurisdiction. 

The writ of error brought up the whole record of the 
proceedings in the Court below, and so the plea in 
abatement was before the Supreme Court. Taney, 
therefore, asked whether a negro can "become entitled 
to all the rights and privileges and immunities 
guaranteed" by the Constitution to citizens, including 
the privilege of suing in the Federal Courts? Taney 
distinguished the status of negroes from that of Indians, 
whose "freedom has constantly been acknowledged." 
The phrase, "people of the United States," familiarly 
called "the sovereign people, " Taney held to be synony- 
mous with citizens. Every citizen is a constituted 
member of this sovereignty." The negroes are not 
included, and were not intended by the Constitution 
to be included in "the people;" but were considered a 
"subordinate and inferior race of beings, who had been 
subjugated by the dominant race, and, whether eman- 
cipated or not, yet remained subject to their author- 
ity, and had no rights or privileges, but such as those 
who held the power and the government might choose 
to grant them." 

Taney next showed how his inveterate Federalism 
had blended itself with his pro-slavery arguments, for 
he distinguished State citizenship from that in the 
United States and held that "it does not, by any means, 
follow, because he had all the rights and privileges of a 
citizen of a State," that any man "must be a citizen 
of the United States, " so as to be entitled to the rights 
and privileges of a citizen in any other State. Before 
the adoption of the Federal Constitution, each State 
made its citizens, and it may still "confer on whom- 






346 ROGER BROOKE TANEY 

soever it pleased the character of citizen" and "endow 
him with all its rights," even though he be an alien, 
yet "he would not be a citizen, in the sense in which 
that word is used in the Constitution of the United 
States." The provision that the Federal Government 
should establish an uniform rule of naturalization, 
proved, to Taney's mind, the proposition that there 
was a National citizenship. It was "very clear" to 
him "that no State can, by a law made since the Con- 
stitution, 45 introduce a new member into the political 
community created by the Constitution of the United 
States. It cannot make him a member of this com- 
munity, by making him a member of its own, and, for 
the same reason, it cannot introduce any person, or 
description of persons, who were not intended to be 
embraced in this new political family, which the Con- 
stitution brought into existence, but were intended to 
be excluded from it." 

He then adds: " Does the Federal Constitution, when- 
ever a negro" shall be made free under the laws of a 
State, "raise him" to the rank of a citizen, and, im- 
mediately, clothe him with all the privileges of a citizen 
in every other State and in its own Courts? The 
"Court thinks," was Taney's reply, "the affirmative of 
these propositions cannot be maintained, and, if it 
cannot," the plaintiff was not a citizen of the State of 
Missouri, and so could not sue in the United States 
Courts. 

It was true that "every person, and every class and 
description of persons, who were, at the time of the 
adoption of the Constitution, recognized as citizens of 

45 Page 12. McHenry Howard, Esq., states that his father, Charles Howard, 
who married Mrs. Taney's niece, stated that Taney wrote the headnotes to 
the Dred Scott Case. 



ROGER BROOKE TANEY 347 

the several States, became also citizens of this new 
political body;" but Taney held that the "legislation 
and history of the times and the language used in the 
Declaration of Independence show that, neither the 
class of persons who had been imported as slaves, nor 
their descendants, whether they had become free or not, 
were then acknowledged as a part of the people." He 
then endeavored to prove this startling assertion. It 
was unprovable. Taney was a feeble, old man, had no 
great amount of time for research, and had collected 
little evidence of his assertion. He stated that, for more 
than a century, before the Declaration of Independence 
and the Constitution were adopted, negroes had "been 
regarded as beings of an inferior order, and altogether 
unfit to associate with the white race, either in social, 
or political relations, and, so far inferior, that they had 
no rights which the white man was bound to respect, 
and that the negro might, justly and lawfully, be reduced 
to slavery for his benefit." 

The phraseology was unfortunate, and the sentiment 
false and inhuman, though it was uttered by a humane 
and truthful man. The people of the Northern States 
forgot the language of the rest of the opinion, and re- 
peated, in horror struck tones, that Judge Taney believed 
that the negro "had no rights which the white man was 
bound to respect, " a statement which was rather unfair 
toward Taney, but which became an effective weapon 
against slavery. 46 Taney's statement was inaccurate 
as to history and law, and Curtis soon showed its mani- 
fest untruth; but even had it been true, it would have 

46 Cf. Rhodes, II, 265. Taney had no prejudice against negroes, and said 
to a friend: "Thank God that at least in one place all men are equal — in the 
Church of God. I do not consider it any degradation to kneel side by side 
with a negro in the house of our Heavenly Father." J. A. Walter, in Century 
Magazine, 1883, p. 958. 



348 ROGER BROOKE TANEY 

been "unwise and unchristian to embody it in such a 
sentence." 47 It was a "grievous fault," and grievously 
did its author answer it. Reverdy Johnson, in his 
remarks at the meeting of the Bar after Taney's death, 
defending his friend, said that "Taney mentioned the 
fact, not to justify, but to deplore it." 48 I can find no 
evidence of this deploring in Taney's words. 

Taney thus continued his cold, unemotional state- 
ment: "He was brought and sold and treated as an 
ordinary article of merchandise and traffic, whenever 
a profit could be made from it. This opinion was, at 
that time, fixed and universal in the civilized portion 
of the white race. It was regarded as an axiom in 
morals, as well as in politics, which no one thought of 
disputing, or supposed open to dispute." 

What proofs did Taney bring of this sweeping state- 
ment? Grossly inadequate ones. In Massachusetts, a 
negro was whipped who hit a white man, and, in Mary- 
land, and in Massachusetts, intermarriage between 
whites and blacks was forbidden. No stronger proofs 
were adduced. These instances showed the "degraded 
condition of this unhappy race" and that a "per- 
petual and impassible barrier was intended to be 
erected" between the two races, which statement 
might well be true, and yet not prove Taney's point — 
that the negro had not rights. He was correct, of course, 
in stating that the "enslaved African race were not 
intended to be included" in the words of the Declaration 
of Independence that "all men are created equal;" 
but this fact does not show that free negroes were ex- 
cluded from that political equality. 

47 Nicolay and Hay, II, 77. 

48 Vide Tyler, p. 494. Century Magazine, 1883, p. 957-8, prints letters 
by J. A. Walter and Courtenay De Kalb, defending Taney's use of the phrase 
that negroes "had no rights which the white man was bound to respect." 



ROGER BROOKE TANEY 349 

His next argument was that the foreign slave trade 
and fugitive slave provisions of the Federal Constitution, 
show that negroes "were not regarded as a portion of the 
people, or citizens of the government then formed," 
but this seems a non sequitur. Because negro slaves 
had certain treatment, it does not follow that negro 
freemen were not citizens, nor is it "obvious, " as Taney 
wrote, "that they were not in the minds of the framers 
of the Constitution," when they gave rights to the citi- 
zens of one State within the limits of another. An 
unworthy and illogical slur upon New England followed, 
when Taney stated that it could hardly be supposed that 
in the States whose citizens engaged in the slave trade, 
"the people could have regarded those who were eman- 
cipated, as entitled to equal rights with themselves." 
The history of the freedmen in Rome, was an answer to 
this statement. 

Then Taney took up the State laws as proving his 
point, forgetting that in his own state, negroes were 
voters in his youth. 49 In Kentucky, a Court had 
decided that a free negro was no citizen. Connecticut, 50 
up to the time of adopting the Constitution, had nothing 
in her legislation "indicating that it meant to place" 
negroes, when free, upon a level with its citizens — 
surely a lame argument. He showed that there was a 
popular prejudice against negroes in Connecticut, as 
manifested in the case of Miss Prudence Crandall, as if 
popular prejudice had the force of law. 51 In New 

49 Steiner's "Citizenship and Suffrage in Maryland," 27, 29, 31. 

80 Lamed (15 New Eng., p. 513) shows that a Connecticut law of 1774, 
(which was a re-enactment of one of 1702), which dealt with all vagrant or 
suspected persons, showed that, if free negroes were associated with slaves 
under the law, they were also associated with white vagrants, no race distinc- 
tion being made. Free negroes voted in Connecticut until 1818. 

51 Lamed, in 15 New Englander 515, showed that there was no legal 
decision here to support Taney's opinion. 



350 ROGER BROOKE TANEY 

Hampshire, only free, white citizens were allowed in the 
militia, so the negro "forms no part of the sovereignty 
of the State." One may reply that no more do men 
above military age, yet their citizenship continues. 
Rhode Island forbade intermarriage of the races, and 
Chancellor Kent said that, only in Maine, did "negroes 
participate, equally with the whites, in the exercise of 
civil and political rights." It will hardly be believed 
that this pitifully meagre array of evidence was all that 
Taney presented. 52 Yet from that paltry evidence, he 
made the broad assumption that "it is hardly consistent 
with the respect due to the States, to suppose that they 
regarded, at that time, as fellow citizens and members 
of the sovereignty, a class of beings whom they had 
thus stigmatized, or that the slave-holding States would 
have consented to a Constitution which might compel 
them to receive negroes as citizens from another state 
and so be exempt from police regulations." The 
answers to this latter statement are that no one expected 
any extensive migration of negroes, and that "police 
regulations" of all citizens of a State remained in the 
hands of its authorities; after the adoption of the Con- 
stitution, just as before that time. "This want of 
foresight and care" by the framers of the Constitution, 
probably occurred, even though Taney thought it 
"would have been utterly inconsistent with the caution 
displayed in providing for the admission of new members 
into the political family" by naturalization. The 
Constitution, undoubtedly, gave to Congress the sole 
power to confer citizenship on those born in foreign 

52 Sumner noted (works v. 179) in 1860, that the Constitution of Missouri 
said free white male citizens, implying that there might be colored citizens 
and that certain sections of the Alabama Code stated that they did not affect 
"a free person of color, who, by the treaty between the United States and 
Spain, became a citizen of the United States, or the descendants of such!" 



ROGER BROOKE TANEY 351 

countries. 53 In the Articles of Confederation, the words 
"free inhabitants," did not include negroes, according 
to Taney's contention; since requisitions for soldiers in 
the Revolution were made on the States in proportion 
to the number of ' ' white inhabitants. " 54 It is impossible 
to follow Taney, when this fact causes him to exclaim: 
'Words could hardly have been used which more 
strongly mark the line of distinction between the citizen 
and the subject, the free, and the subjugated races!" 
Naturalization is only for free white persons, since 
Citizenship, when the Constitution was adopted, "was 
perfectly understood to be confined to the white race, 
and that they alone constituted the sovereignty of 
government." Then he destroys the force of his argu- 
ment, that admitting that Congress might naturalize 
negroes and certainly might have naturalized Indians, 
had they not been too cruel, and that no one thought 
that they would ask for citizenship. 

Then Taney groups certain laws as further proofs 
that, "to call persons thus marked and stigmatized, 
citizens of the United States — fellow citizens — a con- 
stituent part of the sovereignty, would be an abuse of 
terms, and not calculated to exalt the character of an 
American citizen in the eyes of other nations." These 
laws were the militia law of 1792, which said that only 
"free able-bodied white male citizens" 65 should serve; 
the law of 1813 which provided that only "citizens of 

63 Larned, 15 New Eng. p. 520, insists that under the Constitution, white 
might have been left out of the naturalization act. 

54 Larned (15 New Eng. 520) maintained that negroes were included under 
the term, "free inhabitants," as proved by the fact that, when South Carolina 
moved to insert the word "white" in the Articles of Confederation, two States 
voted for it, eight against it, and one was divided. 

65 Larned (15 New Eng. 524) maintained that this law proves, by its 
language, that there were free citizens, not white. 



352 ROGER BROOKE TANEY 

the United States, or persons of color, natives of the 
United States," could be employed on ships; 56 and the 
law of 1820, which restrained the nightly, disorderly 
meetings of slaves, free negroes, and mulattoes in the 
District of Columbia. Here, again, his evidence did 
not establish his thesis. 57 

In his earlier years, Taney had represented before the 
Supreme Court, as attorney, the defendant in the case 
of Le Grand v. Darnall 58 and his client had been de- 
scribed as a negro. Blair had cited the case in his brief, 
and Taney floundered about, in trying to avoid its 
conclusiveness. In doing so, he made the remarkable 
statement, that as a person may be a citizen, though 
exercising no share of the political power, so a person 
may vote in a State by virtue of its law, and be a non- 
naturalized foreigner or a negro. The fact was that, 
just as Marshall decided the Dartmouth College Case 
without defining a contract, so his successor was deciding 
this case without defining the word "citizen." 

Then comes another assumption, that the Federal 
Government has no right to interfere with slavery, but 
must protect the rights of the slaveowners. "To deal 
with the negro, is a power which the States evidently 
intended to reserve to themselves." 

The plea in abatement was before the Court; but, if 
it had not been there, an exception admitted that Scott 
was born a slave, and, if his removal from Missouri did 
not give him freedom, he was a slave and not a citizen, 
so that the case must be dismissed. The discussion of 

56 Taney insisted that these two classes were virtually exclusive, but may 
it not be argued that the second class was added to permit the employment of 
slaves? 

67 He also stated that Wirt and Caleb Cushing, while Attorneys General, 
had not considered negroes as citizens. 

58 2 Peters 670. 



ROGER BROOKE TANEY 353 

the merits of the case was not obiter, for the Supreme 
Court had the right to revise the judgment of the Circuit 
Court, and to revise it for any error apparent on the 
record. Taney distinguished this case from a writ of 
error to a State Court. As the Circuit Court was wrong 
in overruling the plea in abatement, the Supreme Court 
must correct the error, and not leave an erroneous 
judgment in full force and an injured party without 
remedy. It is difficult to see how this statement fits 
this case, for Sanford was not injured by the decision 
below, and, if Scott was a slave, he had received sub- 
stantial justice. Taney now proceeded to inquire 
whether the facts relied on by Scott entitled him to 
freedom, without which inquiry the Court would 
sanction an error which is patent on the record, and 
which might be a precedent, and lead to serious mischief 
in some future suit; though it made no difference as to 
this one. A long discussion followed as to the Western 
lands. 59 The words, "territory and other property," 
in the Constitution, transfer to the new government 
property then held in common by the States, and 
have no reference whatever to any territory acquired 
in the future. The power to control is limited to the 
territory then in existence, nor are the words used such 
as are usually used in giving powers of legislation. 60 
Of course, citizens who emigrate to Territory belonging 
to the people of the United States, cannot be ruled as 
mere colonists. "The principle upon which our Govern- 
ments rest, and upon which alone they continue to exist, 
is the Union of States, sovereign and independent 

59 Are these the 16 pages which Tanej. added to his opinion after delivering 
it? 

60 Taney tries hard to distinguish the case from Am. Ins. Co. v. Canter 
1 Peters 511. 



354 ROGER BROOKE TANEY 

within their own limits, in their internal and domestic 
affairs." Taney found that principle somehow in- 
consistent with a grant of power to the General Govern- 
ment "to hold colonies and dependent territories." 
Congress had no unlimited power to pass laws for the 
Louisiana Purchase, but did so, as "representative and 
trustee of the people." The rights of property of 
citizens are preserved by the Fifth Amendment to the 
constitution, and Taney saw no difference between 
slaves and other property, 61 so that the Missouri act, 
prohibiting citizens from "holding and owning property 
of this kind" (i.e., slaves) in a part of the territory of 
the United States was void. Surely, this is a strained 
and strange construction of the Constitution! 

The case of Strader v. Graham, 62 is held as a precedent 
to show that the residence of Scott in Illinois did not 
free him. 

"Upon a careful examination of all the cases decided 
in the State Courts of Missouri," Taney reached the 
amazing conclusion, which was amply refuted by Curtis, 
that "it is now firmly settled by the decisions of the 
highest Court in the State," that Scott and his wife 63 
are not free. Anyhow, the case should have been 
appealed from the Missouri Supreme Court, and the 
Federal Supreme Court ought not to "sanction such an 
attempt to evade the law, or to exercise an appellate 
power in this circuitous way." 

Finally, Taney returned to the question of jurisdiction 
as based upon citizenship, and held that, "upon the 
whole, therefore, it is the judgment of this court that it 

61 Mr. Justice Brown in Downs v. Bidwell, 182 U. S. Reps. 244-292, said 
that Taney was wrong. 
62 10 Howard 82. 
63 The only reference to her. 



ROGER BROOKE TANEY 355 

appears, by the record before us, that the plaintiff in 
error is not a citizen of Missouri, in the sense in which 
that word is used in the Constitution, and that the 
Circuit Court of the United States, for that reason, had 
no jurisdiction in the case, and could give no judgment 
on it. 

The Chief Justice's whole argument is labored and 
unsatisfactory, and in the phrase of Martin Luther, it 
is a "right strawy" opinion. 

II. THE OPINIONS OF THE OTHER JUDGES 

In most cases, it has been sufficient to give Taney's 
opinion, but here we must summarize all the opinions, 
to give the full account of the cause. Justice Wayne's 
opinion came second, and occupied only four pages. 
He thought that "the case involves private rights of 
value and constitutional principles of the highest im- 
portance, about which there had become such a dif- 
ference of opinion, that the peace and harmony of the 
country required the settlement of them by judicial 
decision," in other words, the Court must settle a 
political question. This sentence shows us the union- 
loving Georgian slaveholder, who largely caused the 
Court's opinion to take so wide a scope. He must have 
revised his opinion after the case was decided, for he 
wrote: "It has been assumed that this court has acted 
extra-judicially, in giving an opinion" upon the Missouri 
Compromise, since the Supreme Court must decide 
whether it has jurisdiction to "review the case from 
the State Court, and, if it shall be found that it has not, 
the case is at an end, so far as this Court is concerned." 
In the case which comes up from a Circuit Court, how- 
ever, "we begin a review of it, not by inquiring if this 
Court has jurisdiction, but if that Court has it. " Other- 



356 ROGER BROOKE TANEY 

wise, the Circuit Court jurisdiction would be enlarged, 
and the Supreme Court could only review the lower 
Court's judgment. He concurred with Taney and 
Nelson. 

Nelson's opinion came next, and occupied nine pages. 
It will be remembered that it was originally intended 
as the Court's opinion, and that Nelson refused to alter 
it. 64 He held that, "except in cases where the power 
is restrained by the Constitution of the United States, 
the law of the State is supreme over the subject of slavery 

within its jurisdiction Whether, therefore, 

the State of Missouri will recognize, or give effect to, 
the laws of Illinois within her territory, on the subject 
of slavery, is a question for her to determine. . . . 
Our conclusion is, in this branch of the case, that the 
question involved is one, depending solely upon the law 
of Missouri, and that the Federal Court, sitting in the 
State and trying the case before us, was bound to follow 
it." The decisions of the Missouri Court in this case, 65 
"must be admitted as the settled law of the State," 
and, consequently, as "conclusive of the case in this 
court." By these decisions, Scott remains a slave. 
Previous decisions in Missouri truly were different, but 
the " first decision of a principle of law by a State Court " 
is not to be regarded as "permanent and irrevocable." 
"What court," asks Nelson, unaware that Lincoln 
and other anti-slavery men shall ask a similar question 
concerning the Supreme Court's decision in this case, 
"has not changed its opinions? What judge has not 
changed?" Most of the previous cases, moreover, in 

64 See Tyler, p. 385. Rhodes, II, p. 253, wrote, if Nelson's opinion had 
been filed alone, the "case would have excited little interest at the time, and 
would hardly have demanded more than the briefest notice from the historian." 

■ 15 Mo. Rep. 576, 595, 17 Mo. Rep. 434. 



ROGER BROOKE TANEY 357 

the border slave States, agree with the Missouri Supreme 
Court's decision in the Dred Scott Case. 

Dr. Emerson went to his post as an officer in the United 
States army "for a temporary purpose, to remain there 
for an uncertain time, and not for the purpose of fixing 
his permanent abode." A citizen of the United States, 
who is a slave holder, has a "right of transit into, or 
through a free State, on business, or commercial pursuits," 
or in the exercise of "Federal rights, or the discharge 
of a Federal duty," — a right depending on the Con- 
stitution of the United States and different from the 
right of a settler. 

Justice Grier, the only member of the Court from a 
Free State, to concur with Taney's opinion, concurring 
also with Nelson, took two short paragraphs to state 
these facts. He had told Buchanan he would file no 
full opinion, and he did not change his purpose. 

Justice Daniel occupied twenty-four pages, emphasiz- 
ing the importance of the case, and giving an elaborate 
and inaccurate account of slavery and Roman Law. 

Justice Campbell's opinion is twenty-five pages in 
length, and includes a discussion of historical questions, 
in the course of which, he likens the position of the 
coalheavers and salters in England at the time of the 
Revolution, to that of the negro slaves in North America. 

Justice Catron, in an opinion of ten pages, took the 
rather remarkable position that, since Scott won the 
demurrer in the Circuit Court and Sanford the decision 
on the merits of the case, neither could appeal. He 
discussed the Treaty, by which Louisiana had been 
ceded, and said the Missouri Compromise Act was void, 
through violating it. 

Seven judges held that Scott should remain a slave. 
Two dissented, and maintained that he was a freedman. 



358 ROGER BROOKE TANEY 

McLean, of Ohio, the senior of these, had been long 
upon the Bench, and was supposed to have held ambi- 
tions to receive the nomination for the Presidency by 
the new Republican party in the recent campaign. His 
opinion covers thirty-five pages. If Nelson gave aid 
and comfort to those who hoped for a change in the 
rulings of the Court, McLean surely used words which 
were almost as extreme as any spoken upon the 
stump by an anti-slavery orator. No more uncompro- 
mising dissent was ever filed. The statement of 
Taney, that, if the Court looking at] the record, sees 
the Circuit Court had no jurisdiction, there is ground for 
dismissal, "maybe characterized as rather a sharp 
practice and one which seldom, if ever, occurs. " Mc- 
Lean is very severe upon Taney's opinion on this point; 
in which no case was cited as authority, nor, "it is 
believed, can be cited." He blamed Taney's counte- 
nance of the practice of some States which permitted 
foreigners to enjoy political privileges, and maintained 
that any freeman is a citizen within the act of Congress 
and entitled to sue in the Federal Courts. Taney 
contended that a "colored citizen would not be an 
agreeable member of society," and McLean shrewdly 
replied that "this is more a matter of taste than of 
law." 

Slavery is a local State institution, existing only in a 
country where it has been established, and a slave 
carried beyond that territory can not be reclaimed. 
In the dark ages, white men were slaves. Slavery is 
not a status peculiar to negroes. 

Marshall, 66 had determined that Congress possessed 
power to legislate for the territories. To provide for 
the government of lands annexed to the country is an 

66 Atlantic Ins. Co. v. Canter, 1 Peters, 511. 



ROGER BROOKE TANEY 359 

"implied power, essential to the acquisition of new 
territory." 

McLean flamed out with indignation, and, in language 
remote from the usual calm tones of judicial decisions, 
he exclaimed: "To discover, at this late date, that the 
lawmaking powers had united with the judiciary to 
usurp a jurisdiction which did not belong to them," is 
"more extraordinary than anything which has occurred 
in the judicial history of this, or any other country." 
An "acquiescence under a settled construction of the 
constitution, for sixty years, although it may be errone- 
ous, " is better than to overturn it. 

McLean referred to the law of 1804, which prohibited 
the introduction of slaves into Orleans Territory from 
other parts of the Union and maintained that, if Congress 
may establish a Territorial Government, the Court 
cannot control that discretion as to the details of the 
government. 

Prigg v. Pennsylvania proved that a slave brought 
into a free State becomes free. If slavery should exist 
in a territory, under the laws of which of the Slave 
States should it be administered? This is a question 
which the pro-slavery men never tried to answer — they 
could not answer it successfully. 

McLean then formally defied the opinion just de- 
livered by the Chief Justice: 

In this case, a majority of the Court have said that a slave may 
be taken by his master into a Territory of the United States, the 
same as a horse or any other kind of property. It is true this 
was said by the Court, as also many other things which are of 
no authority. Nothing that has been said by them which has 
not a direct bearing on the jurisdiction of the Court, against 
which they decided, can be considered as authority. I shall 
certainly not regard it as such. 



360 ROGER BROOKE TANEY 

How could one expect the people to respect the deci- 
sion, when a member of the Court publicly announced 
that he would not do so? 

Curiously enough, McLean made no reference to his 
own opinion in the case of Menard v. Aspasia, 67 in which 
he had spoken for the Court, and had held that it had 
no jurisdiction, on an appeal from the Missouri Supreme 
Court, which opinion held that a negro who had been 
taken to Illinois and had returned to Missouri, had 
become free under the terms of the Ordinance of 1787. 
He did not show that Taney's language as to the deci- 
sions of the Missouri Court was far too strong, by citing 
five cases, from 1824 to 1840, in which the Supreme 
Court of that State had declared negroes free, whose 
cases had been similar to that of Scott, and that even 
in the case of Scott, the decision had been made by two 
justices only, while the third dissented. 68 

In his conclusion, McLean quoted from Grier's 
opinion for the Court in Pease v. Peck, decided in the 
preceding term of Court: 69 "When the decisions of the 

67 5 Peters 504. 

68 (1) Winey v. Whitefield, 1 Mo. 473, Slave from N. C. to 111. for three or 
four years then to Mo. — free; (2) La Grange v. Chouteau, 2 Mo. 20. The Ordi- 
nance of 1787 upheld and residence in the Northwest Territory entitled the 
slave to freedom; (3) Julia v. McKinney, 3 Mo. 279, Slave hired out to work in 
Illinois became free; (4) Rachel v. Walker, 4 Mo. 350, Slave brought by Army 
officer taken to Ft. Snelling, and then to Prairie du Chien, and returned to 
Missouri, became free — striking parallel to Dred Scott case (Blair cited this 
case in his brief on Scott) (5) Wilson v. Melvin, 5 Mo. 592, Negro taken from 
Tennessee to Illinois, and then brought to Missouri, is free. McLean noted 
that Gamble C. J. was the dissentient in 15 Missouri. Smith "Parties and 
Slavery, "p. 202, uses a mild word in speaking of McLean's argument as "vigor- 
ous." Farrar in 85 North Am. Rev., p. 407, wrote concerning Scott's residence 
in Illinois: "If neither the Constitution of the United States, nor the Constitu- 
tion of the States can protect personal freedom; no man, whether white or 
black (for the Constitution makes no difference) has any guaranty of protection 
by the strong arm of the law." 

63 18 Howard 589. 



ROGER BROOKE TANEY 361 

State Court are not consistent, we do not feel bound to 
follow the last, if it is contrary to our own convictions 
and much more is this the case, when, after a long course 
of consistent decisions, some new light suddenly springs 
up, or an excited public opinion has elicited new doc- 
trines, subversive of former safe precedent." After this 
quotation, McLean tartly said that these words "do 
not seem to be as fresh in the recollection of some of 
my brethren as in my own." 

Justice Curtis's dissent, the last of the opinions, covers 
nearly seventy pages, and was his swan song, for he 
resigned before the next term of Court. It has been 
well said 70 that "by complete logical argument" this 
opinion "refutes every one of Taney's points" and that, 
"as an exposition of the Federal conception of the nature 
of the government and the powers of Congress," it 
"was a masterpiece." 71 

Curtis admitted, in the outset, that the Supreme 
Court could decide upon the question of jurisdiction 
and that Sanford did not lose the right to have the 
matter discussed, by assigning error on the record, 
because he won the case below ; since on a writ of error, 
the whole record is open for inspection in the Supreme 
Court. The true question, to Curtis's mind, was 
whether the Supreme Court would affirm, or revise, 
the judgment of the Circuit Court on the merits, when 
the record showed upon a plea to the jurisdiction, that 
the case was one to which the judicial power of the 
United States did not extend. Curtis answered the 

70 Smith "Parties and Slavery," p. 202. 

71 Cf. Rhodes, II, 263. Ex-President Fillmore wrote Curtis that his argu- 
ment was unanswerable. Tyler, p. 363, attacked Curtis's doctrine that 
slavery was created by municipal law and maintained that it was created by 
the law of nations. 



362 ROGER BROOKE TANEY 

question affirmatively, and said that the Court on its 
own motion might so act. 

In a very learned fashion, he then discussed citizen- 
ship, but did not define it. The citizens of the several 
States were citizens of the United States under the 
Articles of Confederation. Judge Gaston 72 in 1838, 
had said in North Carolina, while delivering an opinion 
for the highest court of that State, that all human beings 
were either slaves, aliens, or citizens. Massachusetts, 
New Hampshire, New York, and New Jersey all had 
negro citizens, entitled to vote before 1787. "My own 
opinion is," added Curtis, "that a calm comparison of 
these assertions of universal, abstract truths, and of 
their own individual opinions and acts would not leave" 
the men of those States "under any reproach of incon- 
sistency But this is not the place to vin- 
dicate their memory." The Constitution, proprio 
vigore, does not deprive of citizenship any class of persons 
who were citizens of the United States at the time of its 
adoption, or who should be native born citizens of any 
State after its adoption. When the Constitution uses 
the phrase, "native born citizen, " it implies that citizen- 
ship comes from birth. In five States, at least, colored 
men could vote, at the time of the adoption of the United 
States Constitution. 73 "The only power given to Con- 
gress to legislate concerning citizenship, is confined to 
the removal of the disabilities of foreign birth. There 
is no reference in the Constitution to any native born 
persons who should derive their citizenship in the 
United States from the action of the Federal Govern- 
ment. " The enjoyment of the elective franchise is not 
essential to citizenship. A naturalized male citizen 

72 State v. Manuel, 4 Dev. and Bat. 24. Blair cited this case. 

73 Maryland was a sixth. 



ROGER BROOKE TANEY 363 

may not become President; yet he is a citizen. Citizen- 
ship is not dependent upon the possession of any parti- 
cular political or civil rights. "It rests with the States 
themselves so to frame their Constitutions and laws, 
as not to attach a particular privilege, or immunity, 
to mere naked citizenship." Under the Confederation, 
the term "free inhabitants" was used as equivalent for 
"citizens." 

A master may not emancipate a slave and make him 
a citizen thereby, without the approval of the State. 
The treaties with the Choctaws and Chickasaws and 
that with Mexico at Guadalupe Hidalgo, had made 
colored persons citizens. 

The plea to the jurisdiction was bad, according to 
Curtis's view. He dissented from the "assumption of 
authority" to examine the constitutionality of the Mis- 
souri Compromise Act. Such an exertion of judicial 
power transcends the limits of the authority of the 
Court. 74 

Curtis considered that the Circuit Court had juris- 
diction, and, consequently, he must consider whether 
its decisions should be reversed. He therefore inquired: 
(1) What was the law of the territory into which Scott 
went? and (2) Did the State of Missouri recognize that 
law, on the return of Scott? 

As to the first question, Curtis wrote that the will 
of states and nations, by whose municipal law slavery 
is not recognized, has been manifested either (a) ab- 
solutely to dissolve the relation of master and slave, (b) 
to refuse the master aid to exercise control over the 
slave, or (c) to distinguish between the case of a master 
and slave temporarily in the country animo non manendi, 

74 He cited La Grand v. Darnall, 2 Peters 664, and Livingston v. Story, 
11 Peters 351. 



364 ROGER BROOKE TANEY 

and that of those residing there permanently. If the 
Acts of Congress are valid, the law of the Territory, 
within whose limits Scott and his family resided, fell 
under the first category, and operated directly upon the 
status of the slave, changing it to freedom. By extend- 
ing the Laws of Michigan, to the Territory of Wisconsin, 
in which Fort Snelling was located, when Scott lived 
there, Congress not only borrowed a "general system 
of municipal law," which "did not tolerate slavery," 
but it was "positively enacted that slavery" should 
not exist there. 

Curtis then inquires whether the law of Missouri 
recognized the "change wrought in the status of Scott 
by the operation of the Wisconsin laws"? "In the 
absence of positive law to the contrary," he answered, 
"the will of every civilized State must be presumed to 
allow such effect to foreign laws, as is in accordance with 

the settled rules of international law It 

is the comity of the State, not of the Court." The 
judges' "duty is simply to ascertain and give effect to 
this will." Missouri, neither by statute, nor by cus- 
tomary law, (which was the Common Law introduced 
in 1816), "had manifested its will to displace any rule 
of international law applicable to a change in the status 
of a slave by foreign law." International law declares 
that the status of any person must be determined by 
the law of that country, "which has next previously, 
rightfully, operated on and fixed that status." 

A military officer's domicile may be his residence. 
He is not incapable of acquiring one, and the presump- 
tion is that a two years' sojourn would establish a resi- 
dence. Scott's domicile must have been that of Dr. 
Emerson, who "went into the territory to discharge 
his duty to the United States." Over him, "all valid 



ROGER BROOKE TANEY 365 

laws of the United States, constitutionally enacted by 
Congress for the government of the territory, rightfully 
extended." If those laws were constitutional, Scott 
and his wife were capable of contracting a lawful 
marriage, and were "absolutely free persons." A 
marriage valid by law of the place where it was con- 
tracted is valid everywhere. If Scott and his wife were 
slaves, three was no valid marriage, and the children were 
illegitimate. "In my judgment," Curtis announced, 
"there can be no more effectual abandonment of the 
legal rights of a master over his slave, than by the con- 
sent of the master that the slave should enter into 
a contract of marriage in a free State." A law in 
Missouri which would annul a marriage lawfully con- 
tracted in Wisconsin would impair the obligation of a 
contract, and, accordingly, would be unconstitutional. 
The decision in the Missouri Supreme Court as to Scott, 
did not settle the question of his domicile, but broadly 
denied the operation in Missouri of the law of any 
foreign State, or country, upon the status of a slave 
going into Missouri from such foreign State, the laws 
of which country had acted directly upon his status, 
changing it from slave to free. This decision was wrong, 
and was in conflict with previous decisions of that 
Court, with a great weight of judicial authority in other 
slave-holding States, and with the fundamental princi- 
ples of private international law. The Supreme Court 
is not bound to follow it, but has the rightful authority, 
finally, to decide the effect of valid laws on the status 
of Scott in Wisconsin, and as to whether the Missouri 
law, as interpreted in the decision, impaired the obliga- 
tion of a contract. 

The fact that the suit in the Missouri Court was 
abandoned, and a new suit was begun in the Federal 



366 ROGER BROOKE TANEY 

Courts, had so little weight that the Court had not 
considered a similar point sufficiently important to 
notice in its opinion in a recent case, 75 although its 
attention had been called to the matter in the argument. 
(Like McLean, he cited Pease v. Peck to show that 
the last decision of the State Court need not be taken.) 
He next approached the validity of the Missouri 
Compromise Act. It depended on the power of Con- 
gress over the territories. The cessions of territory by 
the States to the Federal Government conceded juris- 
diction, as well as soil. In 1787, while the Constitutional 
Convention was sitting at Philadelphia, the Confedera- 
tion Congress, meeting in New York City, passed the 
North West Territory Ordinance on July 13, and it was 
known to the Convention that this stretch of the powers 
of the Confederation was made by necessity. Clearly, 
the Convention would not have neglected, at that 
moment, to have given the Federal Government under 
the Constitution all necessary powers of legislation over 
the territories. The term "Territory of the United 
States" did not describe an "abstraction," but an 
"actual subject matter, and not alone" the lands 
"actually belonging to the United States, for cessions 
from North Carolina and Georgia were contemplated." 
It is now far too late to question the validity of annexa- 
tions of new territory to the United States, and the only 
way by which the Federal Government possesses the 
power of governing such annexed lands, is under the 
territory clause. To take a clause, "the language of 
which is broad enough to extend throughout the exist- 
ence of the government, .... and narrow it 
down to territory belonging to the United States when 
the Constitution was framed, while, at the same time, 

75 Horner v. Benson, 16 Howard 354. 



ROGER BROOKE TANEY 367 

it is admitted that the Constitution contemplated and 
authorized the acquisition. ... of other and for- 
eign territory, " was as "inconsistent with the nature and 
purposes of the instrument, as it is with its language." 
The rules and regulations made by Congress can be 
nothing but laws. The limits of these rules are those 
of the "express prohibitions on Congress." The regu- 
lations must be "needful, " — a political and not a judicial 
question, to be decided by Congress. The Federal 
Government possesses the "power to govern the in- 
habitants of the Territory by such laws as Congress 
deems needful, until they obtain admission as States." 
Slavery is not excluded from the Congressional power, 
which extends to "all needful rules." "The purpose 
and object of the clause being to enable Congress to 
provide a body of municipal law for the government of 
the settlers, the allowance, or the prohibition of slavery 
comes within the known and recognized scope of that 
purpose and object," Curtis contined, saying that a 
"practical construction, nearly contemporaneous with 
the adoption of the Constitution, and continued by 
repeated instances through a long series of years, may 
always influence, and, in doubtful cases, should deter- 
mine the judicial mind on a question of the interpreta- 
tion of the Constitution." Applying this principle, 
he noted that Congress in 1789 adopted as a law the 
Ordinance for the government of the Northwest Terri- 
tory, fourteen members of the Constitutional Conven- 
tion, including James Madison, being members of the 
Congress. Congress acted favorably, or unfavorably, 
as to slavery in the cases of the North Carolina Cession, 
and in the cases of the Territories of Mississippi, Indiana, 
Michigan, Illinois, Wisconsin, Iowa, and Oregon. In 
the Missouri Compromise Act, Congress refused to 



368 ROGER BROOKE TANEY 

interfere with slavery in Louisiana, and in the territories 
of Orleans, Missouri, and Florida. Curtis found eight 
instances from 1789 to 1848, in which Congress had 
excluded and six more (the last being in 1822), when it 
recognized and continued slavery. Every President, 
who was in public life when the Constitution was 
adopted, had signed one of those acts. 

The view that the Constitution secures every slave- 
holder an indefeasible right to hold slaves in the terri- 
tory, was drawn from property rights, and from the 
claim that exclusion of slaves made an unjust discrimina- 
tion. The Court had no concern with the weight of 
these considerations, which could not engraft anything 
upon the Constitution. "To allow this to be done 
. . . ., upon reasons purely political, renders its 
interpretation impossible, because judicial tribunals as 
such cannot decide upon political considerations." 
Taney had often expressed this sentiment, but here had 
departed from it. "When a strict interpretation of the 
Constitution, according to the fixed rules which govern 
the interpretation of laws, is abandoned," Curtis con- 
tinued, "and theoretical opinions of individuals are 
allowed to control its meaning, we no longer have a 
Constitution, — we are under the government of indivi- 
dual men," and, "in place of a Republican government, 
with limited and defined powers, we have government 
which is merely an exponent of the individual political 
opinions of the members of the Court. Where the 
Constitution has said all needful rules and regulations" 
as to the territory may be made by Congress, Curtis 
"must find something more than theoretical reasoning 
to induce me to say it did not mean all." 76 

76 He cited Loughborough v. Blake, 5 Wheaton, and the decision in 9 
Wheaton as to the embargo, to support his position. 



ROGER BROOKE TANEY 369 

The only clause in the Constitution suggested as a 
reason for declaring the Missouri Compromise uncon- 
stitutional, was the fifth Amendment, to the effect 
that property should only be taken by due process of 
law. Curtis replied to this citation; that (1) "slavery, 
being contrary to natural right," is created only by 
municipal law; 77 that (2) the "master is subject to the 
supreme power of the state whose will controls his action 
toward his slave and this control must be defined and 
regulated by the municipal law;" and (3) that "not 
only must the status of slavery be created and measured 
by municipal law, but the rights, powers, and obligations 
which grow out of that status, must be defined, protect- 
ed, and enforced by such law." Curtis then puts this 
question to the advocates of slavery: "Is it conceivable 
that the Constitution has conferred the right on every 
citizen to become a resident of the territory of the 
United States with his slaves, and there to hold them as 
such, but has neither made, nor provided any municipal 
regulations which are essential to the existence of 
slavery? If a citizen of a slaveholding State may bring 
slaves into this territory, why may not a citizen of a 
non-slaveholding State do so? and "what law of slavery 
does either take with him to the Territory?" If the 
reply should be the law of the State whence the slave 
came, Curtis would explain: "What an anomaly is 
this! Where else can we find, under the law of any 
civilized country, the power to introduce, and per- 
menently continue, diverse systems of foreign municipal 
law, for holding persons in slavery!" Curtis shows that 
"The offspring of the female must be governed by the 
foreign municipal law to which the mother was subject, 
and that, when any slave is sold or passes by succession 

77 Cf. Prigg v. Pa. 



370 ROGER BROOKE TANEY 

on the death of the owner, there must pass with him, 
by a species of subrogation, and as a kind of unknown 
jus in re, the foreign municipal laws which constituted, 
regulated, and preserved the status of a slave before his 
exportation." Such a condition would "prove to be 
as unpracticable in fact, as it is . . . . monstrous 
in theory." 

The territory ceded by France, was acquired for the 
equal benefit of all the citizens, of the United States, 
"in their collective, not their individual capacities, 
. . . . according to the best judgment and discre- 
tion of the Congress Whatever individual 

claims may be founded on local circumstances or sec- 
tional differences of condition, can not .... be 
recognized in this court, without arrogating to the 
judicial branch of the Government, powers not com- 
mitted to it, and which" it is not "fitted to wield." 
If the phrase, "due process of law," was violated by 
Congress in 1820, it was also violated in 1787, but no 
one discovered it. Maryland and Virginia had for- 
bidden the importation of slaves, without being sup- 
posed to violate the Constitution. If Congress had 
power to prohibit slavery at all, the use of the word 
" forever" in the act would not invalidate the law, for the 
word only means until the act is repealed. The treaty 
of cession of Louisiana cannot "deprive the Congress 
of any part of the legislative power conferred by the 
Constitution." A stipulation in a treaty as to legisla- 
tion had repeatedly been held in the Supreme Court 
"to address itself to the political or legislative power, by 
whose action thereon this Court is bound." That 
treaty, however, contains no provision limiting Congres- 
sional power, and the Missouri Compromise territory 
was a "wilderness inhabited by savages" in 1803. A 



ROGER BROOKE TANEY 371 

clause in the treaty, protecting the individual rights of 
the inhabitants of Louisiana, did not preclude Congress 
from excluding slavery from uninhabited territory. 
Curtis ended by saying: "I have touched no question, 
which, in the view I have taken, it was not absolutely 
necessary for me to pass upon," and have avoided no 
question. "To have done either more or less would 
have been inconsistent with my views of my duty." 
No one has given a more serious view of the im- 
portance of the Dred Scott Case than B. R. Curtis, Jr., 
in his life of his father, Mr. Justice Curtis. 78 He main- 
tains that there was no proper judicial majority "upon 
the question of the power of Congress to prohibit slavery 
in a Territory, and, consequently, the claim that a 
'decision' adverse to that power had been made by the 
Supreme Court, was erroneous." He insists that the 
"course of a majority of the judges .... pre- 
cipitated the action of causes which produced our Civil 
War." "Southern secession would never have been 
attempted without such excitement as was occasioned 
by what was claimed to be a decision of the Supreme 
Court" concerning slavery in the territories. Without 
this decision, Southern feeling concerning the carrying 
of slaves into a territory "must have died a natural 

death It was the factitious importance 

given to the supposed constitutional rights of such 
extension by the venerable persons composing the major- 
ity of the Supreme Court, that awakened anew a jeal- 
ousy which had already subsided under the tran- 
quillizing influences" of the Compromise of 1850. 
There was a general feeling throughout the North, that 
the annulling of the Missouri Compromise Act was 

78 Life of Curtis, I, 195 to 197. See Hampton L. Carson's "Great Dissent- 
ing Opinions" in Proceedings of Am. Bar Ass. for 1894, p., 284. 



372 ROGER BROOKE TANEY 

"made from political motives." The majority judges 
failed to prevent such an idea, by combining their views, 
or of disposing otherwise of the case. The filing of 
separate opinions made people think that much was 
said obiter, and that there was something wrong. Con- 
fidence in the Court was impaired by the decision, and 
the majority of lawyers in the North rejected it. 

By a vote of seven to two (McLean and Curtis), the 
Court had held that Scott was a slave. Three of the 
justices, (Taney, Wayne and Daniel) had said that no 
descendant of a slave could be a citizen, and one (Curtis) 
had dissented from that view. Four, and possibly five, 
justices (Taney, Wayne, Daniel, Curtis, and possibly 
Grier), had decided that the plea in abatement and the 
whole judgment of the Court below were before the 
Court on the record, 79 two had denied this (Catron and 
McLean), and two (Nelson and Campbell) expressed 
no opinion in the matter. Nelson rested his entire 
opinion on reaffirming the decision of the Circuit Court, 
and five, including Taney, concurred with him. Four 
justices out of nine held the Missouri Compromise Act 
unconstitutional, (Taney, Wayne, Grier and Catron). 8 * 
The confused condition of affairs clearly appears in 
these combinations. 

On the seventh of March the Court delivered its 
opinion in accordance to the forecast, and on the next 
day, Pike wrote the Tribune: 81 

The slavery question has, at length, found its way into the 
Supreme Court .... and that body has fully justified all 
predictions and all anticipations that the system would find there- 
in a home and a bulwark Alas! that the character 

79 Corwin, p. 134, placed Campbell here instead of Grier. 

80 See Farrar in 85 North Am. Rev. 392, and McMaster, VIII, 280. The 
latter speaks of the majority of the Court as "laying aside decorum and usage." 

81 "First Blows," p. 367. 



ROGER BROOKE TANEY 373 

of the Supreme Court of the United States as a judicial body has 
gone! It has abdicated its just functions and descended into the 
political arena. 

Pike praised the dissenting justices and bitterly insisted 
that the decision "must be temporary." The court's 
appearance, while performing this "atrocious" and un- 
necessary action, was that of "nervous exaltation." 
Taney, "the cunning chief, had led the van, and, plank 
by plank, laid down a platform of historical falsehood and 
gross assumption." 

These hot and passionate words were uttered by a 
man, in whom reflection wrought no change of mind, 
and, on March 23, he wrote the Tribune, in answering 
the question: "What are we doing to do about the 
decision?" "We propose to revolutionize the revolu- 
tion," and "strike directly at slavery." 82 The State 
of Missouri gave official approval by naming a County 
after Taney. Its county seat, Taneyville, is the only 
post office in the United States named for the Chief 
Justice, for Taneytown, in Maryland, took its name 
from one of his relatives. 83 

Alexander H. Stephens, speaking in the House of 
Representatives, on May 1, 1857, 84 accepted the deci- 
sion, as proving that Minnesota could confer upon 
persons who were not citizens of the United States, the 
right to vote for members of the Legislature and for 
Congressmen, without violating the Federal Constitu- 
tion. Taney had admitted that the States could confer 
upon negroes the privilege of suffrage within their own 
limits, without making them citizens of the United 

82 "First Blows," p. 370. 

83 2 Md. Hist. Mag. 74. 

84 Johnston and Browne's Stephens p. 335. 



374 ROGER BROOKE TANEY 

States. There could scarcely have been a more perfect 
reductio ad absurdum of Taney's opinion. 

Two years subsequently, Stephens 85 said that on the 
principle of the Dred Scott decision depended, "in all 
probability, the destiny of this country, and who is vain 
enough to suppose that the Dred Scott decision would 
have been made, but for the agitation and discussion 
that preceded it, and the sound, clear principles which 
that discussion brought to light?" 

Buchanan stood firmly behind the opinion 86 but was 
forced to say in his message to Congress of December 
3, 1860, after stating that emancipation is an "act of 
sovereign authority and not of subordinate territorial 
legislation," 87 that, in spite of the Supreme Court's 
action, "such has been the factious temper of the times, 
that the correctness of this decision has been extensively 
impugned before the people, and the question has given 
rise to angry political conflicts throughout the country. " 

Reverdy Johnson always insisted that the decision 
was correct, and yet continued to believe in squatter 
sovereignty, maintaining that the decision had not 
forbidden the settlers to abolish slavery. 88 

Stephen A. Douglas was forced to defend the decision 
so feebly in Illinois, in order to defeat Lincoln in the can- 
vass for the United States Senate in 1858, that the 
South refused to support him for the Presidency in 1860. 

85 On August 2, 1859, Life by Cleveland, p. 644, quoted in Von Hoist Const. 
Hist, of U. S., VI, p. 45. 

86 See his veto messages of Feb. 24, 1859, on the bill donating public lands, 
and of June 22, 1860, on the homestead bill, (Works, X, pp. 351 and 443), 
and letter of 1865, on the nullification of the Dred Scott decision by Congres- 
sional Act of June 19, 1862, which destroyed slavery in the territories, Works, 
XII, 37. 

87 Works, XII, 101. 

88 Tyler, 385, Steiner's "Life of Johnson," p. 38. 



ROGER BROOKE TANEY 375 

A writer in the National Quarterly Review for 
December, 1864, 89 defended the Dred Scott decision, 
as legal, not political. It was impossible to suggest 
any other ground for slavery, "that is intrinsically more 
reasonable, or plausible, than that of Taney" — which 
is surely damning it with faint praise. 

Tyler, in his life of Taney, published in 1872, devoted 
thirty pages to the defence of Taney's opinion. With 
indiscriminate praise, Mikell, as late as 1908, wrote 
that 90 Taney's opinion was "unassailable in the logic 
with which it declared unconstitutional the aim and 
purpose of the Republican party." 91 

E. W. R. Ewing wrote a volume which appeared in 
1909, entitled the "Legal and Historical Status of the 
Dred Scott Decision," which warmly defended it. 
Other than these, there have been few important de- 
fences made. 

Taney found opportunity to write three arguments 
in support of his opinion. The first of these was written 
on August 19, 1857, from the Fauquier White Sulphur 
Springs, where he was spending a vacation, and was 
addressed to President Eliphalet Nott of Union College, 
Schenectady, New York. The venerable educator had 
recently written a work entitled "Slavery and the 
Remedy, " with a Review of the Decision of the Supreme 
Court in the Case of Dred Scott, and had sent Taney 
a copy. 92 Taney had been "much out of health" and 
had delayed to acknowledge the work, which he had 

89 Vol. X, p. 60. 

90 4 "Gt. Am. Lawyers," p. 162. 

91 He speaks of the "gratuitous misrepresentation" and the "vituperation 
of partisan abuse" from which Taney suffered. 

92 Taney's reply was presented to the Mass. Hist. Soc. by Robert C. 
Winthrop in March, 1873, and is printed in the Proceedings of the Society, 
1871-73, at p. 445. 



376 ROGER BROOKE TANEY 

read with much pleasure, because of its impartial ana 
friendly spirit." Nott's review of the Dred Scott case 
appeared to Taney to be a "fair one," stating "truly 
its portion." Taney hoped that Nott's work would 
correct "misinterpretation." He did not mean to 
publish a vindication of the opinion. "It would not 
become a member of the Supreme Court" to go outside 
of the "appropriate sphere of judicial proceedings." 
"The opinion must be left to speak for itself." Taney 
had never met Nott, and asked that he do not publish 
the letter. "I am not a slaveholder," Taney added, 
"More than thirty years ago, I manumitted every slave 
I ever owned, except two, who were too old when they 
became my property. These two, I supported in com- 
fort, as long as they lived. And I am glad to say that 
none of those whom I manumitted disappointed my 
expectations, but have shown, by their conduct, that 
they were worthy of freedom and knew how to use it." 
The letter is important from its disclosure of Taney's 
personal attitude towards slavery. He wrote: 

Every intelligent person, whose life has been passed in a slave- 
holding State, and who has carefully observed the character and 
capacity of the African race, will see that a general and sudden 
emancipation would be absolute ruin to the negroes, as well as to 
the white people. In Maryland, and Virginia, every facility has 
been given to emancipation, where the freed person was of an age 
and condition of health that would enable him to provide for him- 
self by his own labor Manumissions were frequent, 

and numerous; they sprang from kindness and sympathy of the 
master for the negroes, from scruples, and were often made without 
sufficiently considering his ability and fitness for freedom. And 
in the greater number of cases that have come under my obser- 
vation, freedom has been a serious misfortune to the manumitted 
slave, and he has most commonly brought upon himself privations 
and sufferings which he would not have been called upon to endure 



ROGER BROOKE TANEY 377 

in a state of slavery. In many cases, however, it has undoubtedly 
promoted his happiness. 

It is difficult for any one who has not lived in a slaveholding 
State to comprehend the relations which practically exist between 
the slaves and their masters. They are, in general, kind on both 
sides, unless the slave is tampered with by ill-disposed persons, 
and his life is usually cheerful and contented, and free from any 
distressing wants, or anxieties. He is well taken care of in infancy, 
in sickness, and in old age." 

Taney admitted that there were exceptions, as "will 
always be the case where power combined with bad pas- 
sions, or a mercenary spirit, is on one side, and weakness 
on the other." 

"Unquestionably," he continued, "it is the duty of 
every master to watch over the religious and moral 
culture of his slaves, and to give them every comfort 
and privilege that is not inconsistent with the continued 
existence of the relations between them." Most of the 
"hereditary slaveholders" in Maryland and Virginia 

do this. 

Taney believed that it had "been the desire of every 
statesman in Maryland to secure to the slave every 
protection from maltreatment by the master that can, 
with safety, be given, and, without impairing that degree 
of authority which is essential to the "interest and well 
being of both." This is a "delicate question," to be 
"approached with the utmost caution," and had been 
made more difficult, because of the abolitionists' attempt 
to "produce discontent and ill feeling in the subject 
race." The result was that the master became "more 
sensitive and jealous of any new restriction upon the 
power he had heretofore exercised," fearing that any 
step in that direction "might injuriously affect the minds 
of the slaves. They are, for the most part weak, 
credulous, and easily misled by stronger minds." 



378 ROGER BROOKE TANEY 

"If the slaves now receive more privileges," they 
would, probably, be told that they were wrung from their 
master by their Northern friends and be taught to regard 
them as the first step to a speedy and universal emanci- 
pation, placing them on a perfect equality with the white 
race. It is easy to foresee what would be the sad result 
of such an impression upon the minds of this weak and 
credulous race." No statement could show Taney's 
mind upon the subject more clearly, nor more thoroughly 
display the essential evils of slaveholding, as expounded 
by one of the most enlightened and moderate of its 
advocates. 

A few days later, on August 29, 1857, Taney wrote 
from the same place to ex- President Pierce concerning 
the Dred Scott Case: 

You see, I am passing through another conflict, much like the 
one which followed the removal of the Deposites and the war is 
waged upon me with the same spirit and by many of the same men, 
who distinguished themselves on that occasion by the unscrupulous 

means to which they resorted At my time of life, 93 

when my end must be near, I should have rejoiced to find that the 
irritating strifes of this world were over, and that I was about to 
depart in peace with all men; and all men in peace with me; yet 
perhaps it is best as it is! The mind is less apt to feel the torpor 
of age, when it is thus forced into action by public duties, and I 
have an abiding confidence that this act of my judicial life will 
stand the test of time and the sober judgment of the country, 
as well as the political act of which I have spoke. Your successor 
has, I think, a difficult time before him. Symptoms of discord 
are already appearing. Feeling, as I do, the necessity of cordial 
union among the friends of the Constitution, in order to prevent the 
government from falling to pieces, I am unwilling to find fault 
with the present administration, even when I cannot approve. 

93 Letter is in Library of Congress and is printed in 10 Am. Hist. Rev. 
358. Taney expected to return to Washington about September 15 or 20. 



ROGER BROOXE TANEY 379 

Yet I must say to you that I deeply regret the adoption of the prin- 
ciple of rotation in office. Its inevitable consequences will be to 
multiply the number of political adventurers and trading politi- 
cians, who are always ready to sacrifice the public interests for their 
own individual profit, and our elections, instead of being contests 
for principles, will, in a short time become contests for the emolu- 
ments of office, and be influenced by mere mercenary motives. 
The removal of persons who are opposed to the administration, 
and seeking to displace it, stands on a very different principle. 
Indeed, I never could comprehend how a man of right principles 
and right feelings could consent to hold an office under persons 
whom he thought it his duty to oppose and was endeavoring 
to turn out. But the principle adopted by the present adminis- 
tration, is a very different one, is now for the first time brought into 
the government, and will, I fear, do great mischief. 

A year later, in September 1858, while the subject was 
"fresh" in Taney's mind, he prepared a "statement, 
in order to prove the truth of the historical fact stated" 
in his "opinion, in relation to England and the principle 
decided by the Court," that he might be saved the 
trouble of further investigation, should the subject of 
slavery come before the Court again in his lifetime. It 
is safe to infer that the criticism of this part of the opinion 
had cut Taney most deeply, and it is curious that it 
should be so. 94 Taney was fiercely uncompromising 
in his attitude, and the memorandum would still further 
have exasperated the anti-slavery men, had it seen the 
light, at the time when it was written. He first stated 
"in the case of Dred Scott, the decision is, in express 
terms, confined to the case of a person of the African 
race whose ancestors had been brought to this country 
as slaves." He then proceeded to assert that "the 
Supreme Court did not decide the case upon the ground 

94 Tyler printed this memorandum for the first time in pp. 578 to 608. 



380 ROGER BFOOKE TANEY 

that the slavery of the ancestor affixed a mark of in- 
feriority upon the issue which degraded them below the 
rank of citizens;" but that the provisions contained in 
the United States Constitution, "for the security and 
preservation of individual liberty, and conferring special 
rights and privileges in certain cases upon citizens of 
different States, could not fairly be construed to em- 
brace a description or class of persons, whom they 
regarded as inferior and subordinate to the white race, 
and, in the order of nature, made subject to their domin- 
ion and will, and whom they were accustomed to buy 
and sell like any other property." To put the matter 
briefly, Taney's opinion in the Dred Scott case authorized 
"no distinction between persons of the negro race, 
whether their ancestors were held in slavery or not." 

He next made a long disquisition to prove that he had 
been correct in his statement as to English law. Study- 
ing the transportation of slaves from Africa, he noted that 
Somers, in 1689, said that "negroes are all merchan- 
dise," that the treaty of Utrecht in 1713 granted the 
assiento of slaves to Great Britain, and that this treaty 
was confirmed and renewed at various periods down to 
1750. English statutes, as late as 1787, classed the slave 
trade with that in rum, and Great Britain had prevented 
the colonial prohibition of the Africa slave trade. Of 
course, all this discussion was absolutely irrelevant to 
Taney's point, for no one denied that negro slaves were 
merchandise and the statutes said nothing concerning 
negro freemen. 

Lord Holt, when he said, in Smith v. Brown, that 
"as soon as a negro comes into England he becomes 
free, " only meant in Taney's view that "it was unlawful 
to import such property into England," and even Lord 
Mansfield, in the Somerset case, only went so far as to 



ROGER BROOKE TANEY 381 

maintain that slavery was excluded, as a "matter of 
policy," because the "introduction of such a race of 
slaves would be injurious" to the Englishmen's interests, 

Then Taney turned to the colonists, and maintained 
that their opinions were not "more favorable to the 
rights of the African race than those of the mother 
country." He made many assumptions and we find 
frequent phrases such as "must have been." He 
proved too much, and maintained successfully, of course, 
that the high-sounding words of the Declaration of 
Independence did not emancipate slaves and that the 
framers of this document "intended to preserve their 
ancient and established rights and privileges, and not 
to upturn their own social institutions and domestic 
relations." He confuses the social and legal sides of 
the relation of the races, and states, with perfect truth, 
as if it tended to prove that a negro could not be a citi- 
zen, that there was not a State "in which the inter- 
marriage of a white person with a negro is not still 
deemed to be unnatural." 

He next refers to three American cases, not alluded to 
in his opinion. The first of these is the Pennsylvania one 
of Hobbs v. Fogg, decided in 1837, in which the Court 
held that a free colored man was not such a "freeman" 
as to be entitled to vote and said that "no colored race 
was party to our social compact." This case un- 
doubtedly favored the Chief Justice's contention. 

The second one was the famous North Carolina one 
of the State v. Manuel, much relied on in Curtis's 
dissenting opinion. Taney insisted that Judge Gaston 
was wrong in this decision. The Revolution was not 
a mere change of dynasty, nor were all British subjects 
transformed thereby into American citizens, sharing in 
the "political body called the State." "Those who 



382 ROGER BROOKE TANEY 

displaced the sovereignty of the English monarch, and 
associated themselves in a new political body," did not 
admit negroes thereto, in Taney's view, but he gives no 
evidence for this unsupported assertion and confused 
voting with citizenship. White women did not vote, 
yet assuredly they were citizens. 

The third case was Williams v. Ash 95 in which a negro, 
who sued in the Circuit Court of the United States for 
the District of Columbia for his freedom, was allowed 
it. This case Taney wrote merely concerned the jurisdic- 
tion of a court under the exclusive right of the Federal 
Government in the District, and had no reference to 
the Dred Scott Case. 

He closed his memorandum by a general remark that 
he had seen no criticism of the opinion "that I think 
it worth while to reply to, for they are founded upon 
misrepresentations and perversions of the points de- 
cided by the Court." If "exposed, they would never- 
theless be repeated. " 96 On the whole, though the mem- 
orandum shows astuteness, and ability as an advocate, 
it is as well that Taney did not publish it, for it adds little 
to his reputation as a judge. 

An unpleasant consequence of the decision was the 
friction which occurred between Taney and Curtis. 
The latter went to Virginia, on the adjournment of 
Court, after riling his opinion and giving a copy of it to 
a Boston newspaper man for publication. On his return 
to Massachusetts, he was told 97 that Taney's opinion 
had been revised and materially altered. Thereupon, 

06 1 Howard 1. 

96 He is especially severe upon a "volume published at Boston, . . . . 
which, from the beginning to the end is a disingenuous perversion and misrepre- 
sentation of what passed in conference, and also of what the Court has decided." 
This appears to be a covert attack upon Curtis. 

97 Curtis Life, I, 21 land ff. 



ROGER BROOKE TANEY 383 

he wrote the Clerk of the Court, asking that a copy of 
that opinion be sent him, as soon as it was printed, and 
before publication. On April 6, the Clerk answered, 
refusing to do this, and stating that he acted under 
Taney's orders. Curtis wrote on April 9, stating that 
he felt certain that Taney would not have kept the 
opinion from a fellow- justice and requesting that the 
Chief Justice be told that Curtis wished the copy. On 
April 14, the Clerk answered that he had consulted 
Taney, who reiterated his refusal. Four days later, 
Curtis addressed Taney a letter, asking him to direct 
the Clerk to comply with the request. Taney did not 
respond until April 28, giving his attendance on the 
Circuit Court as the reason for his delay. He acknowl- 
edged having given the order to prevent the publication 
from being hurried "before the public; in an unusual 
manner, by irresponsible reporters, through political 
and partisan newspapers, for political and partisan 
purposes." A relative of Curtis had asked for a copy 
of Taney's opinion, that he might publish the two 
opinions together, and that fact had caused Taney's 
original refusal. Curtis himself might have a right to 
a copy, only in case he wished it in aid of the discharge 
of his judicial duties. Wayne and Daniel approved of 
Taney's orders. The opinion had "been greatly mis- 
understood and grossly misrepresented in publications 
in the newspapers." The Court cannot enter into 
"discussions with gentlemen who write for the news- 
papers," but must take care that its opinion be not 
brought before the public "garbled and mutilated with 
false glosses." 

To this rather discourteous letter, Curtis replied, on 
May 13, disclaiming any connection with the applica- 
tion of his relative. He did not "think it necessary to 



384 ROGER BROOKE TANEY 

explain to the Clerk of the Court the purpose for which 
he "wanted a copy of one of its records," though he 
would have done so to Taney, if such a request had been 
made by him. He felt that he had a duty to lay before 
the country his grounds for dissent, and wished to have 
Taney's opinion, so as to be sure just what it contained. 
The Court could make no order in vacation time to with- 
hold a paper, without notifying all the judges, which 
had not been done. Speedy publication of the opinions 
would prevent the misunderstandings which Taney 
feared, while the withholding of an "authentic copy" 
of the opinion could not correct misapprehension-. In 
Massachusetts and several other States, it was usual 
to print court opinions in the newspapers. 

Taney's next letter was dated June 11. He had 
received Curtis's epistle before setting out to Richmond 
to hold Court there, and his duties and "infirm state 
of health prevented" a prompter reply. He showed 
great irritation and wished to stop the "unpleasant 
correspondence" which Curtis had begun. He must, 
however, correct the "erroneous inferences" which 
would be drawn from Curtis's letter as to Taney and 
the "judges with whom I conferred in opinion. " Taney 
asks why Curtis did not ask him directly whether he 
had "materially altered" his opinion, after it was 
delivered, and receive a prompt and frank answer. The 
report, which led Curtis "to ask for the copy," had "no 
foundation in truth." Taney had not added "one 
historical fact nor one principle of Constitutional law, 
nor Common Law, nor Chancery Law, nor Statute Law;" 
but he admitted that, after hearing the dissenting 
opinions read, he had added "proofs and authorities 
to maintain the truth of the historical facts and principles 
of law asserted by the Court in the opinion delivered 



ROGER BROOKE TANEY 385 

from the Bench." In previous cases, where there had 
been "political clamor," no complaint had ever been 
made of keeping back opinions. If Curtis had suggested 
to the Court an immediate publication, the proposition 
could have been carefully considered and all the opinions 
given to the public at once. Instead of taking this 
step, Curtis wrote Taney, on the day after the case was 
decided, and before leaving Washington, but said nothing 
about printing the opinions. By printing his own in 
the Boston newspaper, he made it impossible to have 
all the opinions issued together, and caused this to be 
the first case in which an "assault" upon the decision 
was "commenced by the publication of the opinion of 
a dissenting judge." This procedure had encouraged 
attacks on the judges who gave the decision, by 
"political partisans, whose prejudices and passions were 
already enlisted against the constitutional principles 
afhrmed by the Court. The annual elections in several 
States were approaching; but the judges who concurred 
in the decision did not "think this state of things would 
justify the Supreme Court of the United States in as- 
suming the attitude of combatants in the political arena, 
by publishing its opinion hastily in the public journals." 
Taney's order to the Clerk prevented this. Curtis 
published his opinion without consulting the majority 
of the Court, and, consequently, Taney told him, he 
had "no just ground upon which" he "could claim to 
share in the control and disposition of the opinion of the 
Court, when the avowed object of your dissenting 
opinion was to impair its authority and to discredit it 
as a judicial opinion." Taney was very bitter, and closed 
the letter with this sentence. "If it is your pleasure 
to address letters to me, charging me with breaches of 
official duty, justice to myself, as well as to those mem- 



386 ROGER BROOKE TANEY 

bers of the Court with whom I acted, makes it necessary 
for me to answer and show these charges to be 
groundless." 

The galled jade truly had winced, and Curtis dis- 
patched an answer from Pittsfield on June 16, having 
read Taney's letter with surprise: "It is certain that 
the correspondence has become unpleasant, but I do 
not find, by reviewing it, that it began to be so by any 
act of mine. " Curtis's first letter was written "without 
expectation that anything unpleasant would grow out 
of it." He did not charge Taney with "breaches of 
official duty," though he considered it "highly in- 
expedient to restrain others from publishing the opinion 
of the Court. But surely there is a wide difference between 
differences of opinion on a point like this, and a charge 
of official misconduct." 

Curtis complained of the "assumption that I wanted 
a copy of the opinion for publication, and not to enable 
me to discharge an official duty" from doing which the 
order was a restraint. Taney's admissions showed a 
"wide field for examination and argument" and gave 
good ground for wishing to see the document. Taney 
seemed to charge Curtis with publishing his opinion 
for "political and partisan purposes." Curtis declined 
to reply to this, because it was impossible to carry on 
"such discussion without bitterness." It sufficed him 
to write that " I have no connection whatever with any 
political party, and have no political or partisan purpose 
in view, and no purpose whatever, save a determination 
to avoid misconstruction and misapprehension." The 
fact that the publication of the Court's opinion was 
restrained, or that it was not ready for publication 
when delivered, did not "authorize any one to impute 
to me intentional unfairness." 



ROGER BROOKE TANEY 387 

Taney received this letter on June 20, and answered 
it on the same day, curtly, saying that everything in 
his letters was "defensive." 

This closed the correspondence. Curtis filed the 
papers with a memorandum that the forty-second rule 
of the Court was that opinions should, immediately 
upon the delivery, be delivered to the Clerk for record ; 
but Taney retained his opinion and added to it, what, 
in Curtis's estimation, amounted to eighteen manu- 
script pages, without notice to Curtis, so that he might 
reply to parts of the dissenting opinion. Then he 
deprived Curtis of the privilege of seeing the Court's 
opinion, until the official report appeared. When the 
opinion had been delivered to the Clerk, it became a part 
of the public records of the country, and any citizen 
had the right to copy and to publish it. Curtis believed 
that the opinion was not ready for publication when 
delivered, and so was not filed, and that the order was 
to conceal the fact that it was not on file. In any case, 
the refusal to give Curtis a copy was "an act of usurpa- 
tion and the reason, which is insinuated, but not stated, 
that it was conjectured that I wanted it for publication, 
certainly does not render the act less offensive." 

George Ticknor Curtis, who had himself been of 
counsel in the case, added to this account 98 that Justice 
Curtis "had as high an appreciation of the judicial 
character and public service of Chief Justice Taney 
as any man who ever knew him." The Court had 
yielded to the "temptation to enter into an expression 
on constitutional questions, because they were entering 
into the politics of the time." Taney" was a "great 
magistrate and a man of singular purity of life and 

98 Curtis Life, I, 230. 

99 Curtis Life, I, 239. 



388 ROGER BROOKE TANEY 

character." A "mistake in a judicial career so long, 
so exalted, and so useful, is only a proof of the imper- 
fection of our nature." The Court's majority made a 
"fatal mistake," in supposing that the decision could be 
accepted by the people of the North, and that the "judi- 
cial mind of the Free States" could be convinced that a 
Court could hold that it had no jurisdiction, and, at the 
same time, could decide constitutional questions arising 
from the merits of the case. 100 "Nothing that had 
previously happened had afforded so much excuse for 
the consolidation of a sectional Northern party in array 
against the supposed influence of the slave power in 
national affairs," nor had been "such a godsend to the 
agitators." "It was the office of statesmen, and not of 
judges," to try to "promote the peace and harmony" 
of the country; but, for once, Taney failed to separate 
political from judicial considerations. 

The Dred Scott Case caused Curtis to cease to feel 
that "confidence in the Supreme Court which was 
essential to his useful cooperation with its members." 101 
He could no longer "expect, on constitutional questions, 
to see that Court act with that judicial propriety and 
consistency and the freedom from political considerations 
which could alone enable it to retain the confidence of 
the country." Accordingly, he resigned his seat on the 
Bench, assigning financial affairs as his reason. When 
he informed Taney of the fact, the latter wrote him, on 
September 7, 1857, a cold, dry, letter. 

My own experience has long since shown me the inadequacy of 
the salary attached to the office. At your time of life, you may 
reasonably expect many years of health, and strength enough for 
judicial and professional labors. And I have no doubt you have 

100 Curtis Life, I, 207-208. 

101 Curtis Life, I, 243, 247. 



ROGER BROOKE TANEY 389 

judged wisely in returning to the bar, instead of remaining on the 
bench and diminishing yearly the provision you had made for your 
family before your appointment. 102 

In May, 1857, Scott and his family were sold to Blow, 
so that they might be owned and manumitted by a 
Missourian, and their freedom soon came to them. 
Scott did not long survive his emancipation, but died 
of consumption in St. Louis on September 17, 1858. 103 

III. RECEPTION OF THE DECISION THROUGHOUT THE 

COUNTRY 

Vice-President Breckenridge was so pleased with 
Taney's opinion that he had it printed at his own 
cost and scattered throughout Kentucky, 104 but, on the 
other hand, public opinion in Massachusetts was much 
shocked, and regarded the decision as a purely political 

102 Justice Campbell presided over the meeting of the Bar of the Supreme 
Court, when Curtis died, and then said that he was not aware that there was 
"hostility or unkindness felt or expressed" to Curtis by the justices who differed 
from him. G. T. Curtis, when Campbell died, said that it was not surprising 
that "judges of Southern birth and training, accustomed to this form of prop- 
erty which lay at the basis of social life in those States, should have over- 
looked those considerations which made the claim untenable under the Con- 
stitution. Certainly, they were bound to follow their convictions, and it seems 
to me that no impartial person can now examine their opinions as pronounced 
from the Bench, without seeing that they expressed convictions most sin- 
cerely and honestly entertained. Not only did those opinions express con- 
victions honestly and sincerely held; but it was supposed by those learned and 
upright men that, when the Supreme Court should have affirmed the Con- 
stitutional doctrine which they believed to be the true one, all further agitation 
and controversy would be ended. This was a great mistake, and miscalculation, 
which the sequal proved." (See H. G. Connor on J. Archibald Campbell in 
52 Am. L. Rev. Mch— Apr. 1918, pp. 184, 187.) 

103 Hill, in Harper's Monthly, for July 1907, p. 252. McMaster, vol. 8, p. 282 

104 Nicolay and Hay's Lincoln, vol. 2, p. 73. 



390 ROGER BROOKE TANEY 

one. 105 The Springfield Republican printed an important 
editorial on the subject on March 11, 1857 : 106 

We can not overrate the significance of the recent opinion of the 

Supreme Court The history of judicial decisions in 

this country contains nothing so important as this 

The case on which the new opinions were given did not necessarily 
call for them. It could have been disposed of, without discussing, 
or disturbing the great principles of slavery which the Court has 

undertaken to settle The majority of the Court 

therefore rushed needlessly to their conclusions and are justly 
open to the suspicion of being induced to pronounce them by 
partisan or sectional influences. The decision was of the utmost 
importance to the slavery interest, and to the Democratic party 
as based upon it. They were in desperate circumstances. The 
present Territories of the country are almost certain to become 
free States. 

The decision "will widen and deepen rather than 
allay agitation. It will be heeded in practice, only 
by those who approve of it in theory. The people 
are the court of last resort in this country. They will 
discuss and review the action of the Supreme Court and, 
if it presents itself in a practical question, will vote 
against it." Merriam, who wrote the editor's life, 
commented upon the decision, as one "not only against 
justice and humanity, but also against the traditions 
and spirit of judicial procedure." 

A week later, the Republican showed in an editorial the 
legal weakness of the opinion. 107 "There was but one 
question before the court, and that was a question 

105 G. T. Curtis to J. J. Crittenden. Coleman's Crittenden, II, p. 137. 

106 Quoted in S. Bowles Memoirs I, p. 222. Ewing "Legal and Hist. Status 
of the Dred Scott Case," pp. 198 and ff. treats newspaper editorials favoring 
and opposing the Court's decision. 

107 Merriam's Bowles, 1, 223. 



ROGER BROOKE TANEY 391 

concerning its own jurisdiction in the case. In fact, 
the Court gave no judgment and simply dismissed the 

case for want of jurisdiction Everything 

beyond this uttered by the Court is just as binding, as 
if it was uttered by a Southern debating club and no 
more. It undoubtedly shows how the court will decide 
in cases involving the questions which it argues and this 
gives its extra-judicial opinions their only power and 
significance." No more penetrating attack upon the 
decision has ever been made than this early one. The 
fact was that Taney had forgotten the warning in his 
favorite Maxims of Lord Bacon, 108 that "there is some- 
thing very flattering to judicial power in the notion that 
it may restrain legislative power within common right 
and reason." 

Stephen A. Douglas vainly tried to endorse the deci- 
sion, saying that it was a "barren and worthless power 
to bring slaves into a territory, unless sustained by 
appropriate police regulations made by the settlers." 
Lincoln, in his Springfield speech, on June 26, 1857, 
made an important utterance upon the matter: 109 "We 
think the Dred Scott decision is erroneous. We know 
the Court that made it has often overruled its own 
decisions, and we shall do what we can to have it over- 
rule this. We offer no resistance to it." His opposi- 
tion was based upon the fact that the decision was not 
unanimous, had partisan bias, was based on "assumed 
historical facts" which were "not really true," and had 
not been reaffirmed by the Court, so that "it is not 
resistance, it is not factious, it is not even disrespectful 
to treat it as not having yet quite established a settled 
doctrine for the country." 

108 Taney's Decisions, 619. 

103 Works, I, 228. Nicolay and Hay, II, 81. 



392 ROGER BROOKE TANEY 

This is a much milder doctrine than Taney's in regard 
to the constitutionality of the United States Bank, and 
it is difficult to see how a man who had accepted the 
latter could logically object to Lincoln's words. 

The North was flaming with indignation. "Far from 
exercising a healing influence, the decision widened im- 
mensely the already serious breach between the North 
and the South." 110 The New York legislature appointed 
a joint committee to consider what measures were 
necessary to protect the rights of her citizens, and upon 
that committee's report, passed resolutions to the 
effect that the State would not allow slavery within its 
borders, and that the Supreme Court, having "identified 
itself with a sectional and aggressive party" had "im- 
paired the confidence of the people" in the tribunal. 111 
The legislatures of Maine and Ohio officially denounced 
the decision 112 in April, 1857, and Vermont, in November,, 
followed the same course. 113 

Other anti-slavery leaders were even more outspoken 
than Lincoln. William H. Seward wrote his son, on 
April 1, 1857, 114 that he had turned his "thoughts to 
a political programme with a view, if it shall be wise, 
to bring it out at some time during the season, as .a 
relief and diversion rendered necessary by the Dred 
Scott Case. " He bided his time, and nearly a year later, 
in a speech delivered in the United States Senate during 
the debates upon affairs in Kansas, on March 3, 1858, 115 
he made a bitter attack upon Taney and the Court, 
which forgot that its province was jus dicere and not 

110 NicolayandHay, II, 81. 

111 McMaster, VIII, p. 282. 

112 Ewing "Legal and Hist. Status of the Dred Scott Case," pp. 189, 195. 
113 Ewing, pp. 192, 194. 

114 Seward's Seward, II, 299. 

116 Vide Congressional Globe, Seward's Seward, IV, 574 to 587, Tyler, p. 374. 



ROGER BROOKE TANEY 393 

jus dare, and so had been guilty of judicial usurpation, 
the "most odious form of tyranny." He charged the 
decision to "dismiss the action for want of jurisdiction 
over the suitor's person," as being "as repugnant to 
the Declaration of Independence and the spirit of the 
Constitution, as to the instincts of humanity." By 
that determination, the tribunal had exhausted all its 
power; but it presumed further to "please the incoming 
President," by "pronouncing an opinion" that, "by 
force of the Constitution, slavery existed .... 
in all the territories of the United States, para- 
mount .... even to the authority of Congress 
itself. " He accused Buchanan and Taney of conspiracy 
in the matter, making such grave charges that his biog- 
rapher, Bancroft, blames him 116 for failing to substan- 
tiate, or withdraw his charges. The Senate printed 
20,000 copies of this speech, and distributed them. 
Taney was so enraged by it that he said that had Seward 
been elected President, he should have refused to 
administer to him the oath of office. 117 

On March 6, three days after Seward's speech, 
Reverdy Johnson wrote from Washington 118 a categorical 
denial of Seward's charges and a flat contradiction of 
his statements, and, for the most part, Johnson was 
right. 

Charles Sumner was even more intense and persistent 
than Seward in his attacks upon Taney and the Dred 
Scott Opinion. In the United States Senate, on July 4, 
1862, he said that this judgment of the Supreme Court 
"must forever stand forth among the inhumanities of 
this generation," and that the Court "erred infinitely 

116 Life of Seward, I, 448. 

117 Tyler, p. 391. 

118 Tyler, p. 385. 



394 ROGER BROOKE TANEY 

and wretchedly." 119 Nearly two years later, on May 
19, 1864, in the Senate Chamber, he returned again to 
the attack, saying that the "Dred Scott decision was 
as absurd and irrational as a reversal of the multi- 
plication table, besides shocking the moral sense of 
mankind." He called it "that atrocious judgment, 
which was false in law and also false in the history with 
which it sought to maintain its false law," and as one 
which "disgraced the country and ought to be expelled 
from its jurisprudence." 120 John P. Hale, the anti- 
slavery leader from New Hampshire, made even a 
fiercer attack, if possible, 121 saying the "Dred Scott 
decision was an outrage upon the civilization of the age 
and a libel upon the law, but I do not think it was a 
disgrace to the Supreme Court of the United States." 

Sumner said that the decision, which was nullified 
by the Act of Congress, passed in 1862, freeing slaves 
in the Territories, was buried out of sight when, upon 
his motion, on February 1, 1865, a colored lawyer was 
admitted to practice before the Supreme Court. 122 
After Taney's death, on February 9, 1866, he styled the 
Dred Scott decision as "perhaps the most thoroughly 
perverse and reprehensible in judicial history. . . 
. . It was an insult to conscience, to reason, and to 
truth." 

The first of the more careful studies of the decision, 
was made by the veteran Jacksonian, Thomas Hart 
Benton, long United States Senator from Missouri, who 
having espoused the cause of freedom, wrote his " Histor- 
ical and Legal Examination of that part of the decision 

119 Works, vol. VII, p. 154. 

120 Works, VIII, p. 237. 

121 Sumner's Works, VIII, 240. 

122 Works, XIII, 337. Speech of Feb. 25, 1870. 



ROGER BROOKE TANEY 395 

of the Supreme Court of the United States in the Dred 
Scott Case which declares the unconstitutionality of the 
Missouri Compact and the self extension of the Consti- 
tution to the Territories carrying Slavery along with it, " 
completing the work in November, 1857, and learnedly 
condemning the opinion. He vigorously attacked the 
declaration that the Missouri Compromise Act was 
unconstitutional. The decision was "contrary to the 
uniform action of all the departments of the govern- 
ment." The Court committed a great error 123 in 
assuming to try such a case; for its power was judicial, 
not political. The decision was "equivalent to an 
alteration of the Constitution." If Congress should 
"look to judicial interpretation for its powers, it would 
soon cease to have any fixedness to go by." The 
motives of the Court were laudable, but "the under- 
taking was beyond its competence." "Far from 
settling the question, the opinion has become a new 
question, more virulent than the former, has become 
the watchword of parties, has gone into party creeds 
and platforms, bringing the Court itself into the political 
field, and condemning all future appointments of Federal 
judges" to the test of their support or rejection of this 
decision. 

He objected to the Court's entrance into the merits 
of the case, after deciding there was no right to try it 
through want of jurisdiction, and said that the Court 
"worked sedulously at building the bridge, long and 
slender, upon which the majority of the judges crossed 
the wide and deep gulf which separated the personal 
rights of Dred Scott and his family from the political 
rights of the whole body of the American people." 
"So grave an inquiry," Benton insisted, "going to the 

123 Examination of the Dred Scott Case. 



396 ROGER BROOKE TANEY 

foundations of our government, ought not to be got 
hold of in that incidental, subaltern, and contingent 
way. " Even if there had been jurisdiction, so "momen- 
tous a question" should not "have been hung on it, 
and tried as appendant to a decision of the personal 
freedom" of Scott. Especially was this the case, when 
the consequences to him were the same, whatever might 
be the fate of the Missouri Compromise. The Court 
set "out with a fundamental mistake, which pervades 
its entire opinion and is the parent of its portentous 
errors. That mistake is in the assumption that the 
Constitution extends to Territories, as well as to States, 
and includes these infant settlements in the provisions 
made for sovereign States. " Benton held, and vouched 
Webster as a supporter, that the Constitution could not 
be extended over anything except the present States, 
and new such ones as are admitted into the Union. 

Calhoun, in 1848, first advocated the extension of the 
Constitution to the Territories, and carried his point in 
the passage of the General Appropriation Bill. The 
Court now decided that the Constitution went of itself 
and enforced itself in these Territories, so far as slavery 
was concerned. Any citizen of any State may carry 
with him any property, considered such by the laws of 
nature, into any territory, according to Benton's view, 
but no man may carry that which is only property by 
State law, "because he cannot carry with him the law 
which makes it property." In Virginia, slaves are 
chattels; in Kentucky, they are real estate, and the 
"servile code" of each slave State differs from that of 
every other. "There being no power in Congress, or 
the Territorial legislature, to legislate upon slavery," 
according to the Court's opinion, Benton holds that 
the "whole subject is left to the Constitution and the 



ROGER BROOKE TANEY 397 

State law, that law which cannot cross the State line 
and that Constitution which gives protection to slave 
property, but in one instance, and that only in States, 
not in Territories — the single instance of recovering 
runaways." The Constitution does not guarantee 
Republican government to the Territories, and they have 
not been always so governed. The Federal judiciary 
does not extend to the Territories. The North West 
Ordinance, confirmed by a Congressional act passed 
by Southern votes, freed slaves, "as proprietor and 
sovereign," and as a "right incidental to ownership and 
jurisdiction. " That act is the "authoritative exemplifi- 
cation and assertion of the power of Congress over the 
territory, going the whole length of governing a Territory 
as it pleased, and legislating upon slavery to the extent 
of the instant and uncompensated emancipation of a 
great number of slaves," as Benton wrote. 124 "Five 
times in vain, the inhabitants of Indiana and Illinois 
petitioned Congress to suspend the anti-slavery clause 
in the North West Ordinance, and at one attempt in 
1806 the unfavorable report of the Congressional Com- 
mittee was written by John Randolph of Roanoke." 
North Carolina and Georgia ceded territory to the 
Nation, with the condition that Congress should not 
emancipate slaves therein, proving that otherwise this 
might have been done. In the organization of 
Mississippi Territory in 1798, Robert Goodloe Harper 
of South Carolina secured the prohibition of the foreign 
slave trade, ten years before such prohibition could 
be made in the States. 

When Louisiana was annexed, Randolph spoke of 
the necessity of "taking possession of this country in 
the capacity of sovereigns." "The Missouri Compro- 

lii Page 45. 



398 ROGER BROOKE TANEY 

mise was a Southern measure. In the debate thereon 
strong expressions were used without any rejoinder. 
For example, John W. Taylor of New York "believed 
that there was no member .... who doubted 
the constitutional power of Congress to impose such a 
restriction on the Territories." General Samuel Smith 
of Maryland "considered the power of Congress over 
the Territory as supreme, unlimited," and "that Con- 
gress could bestow on its Territories any restrictions that 
it thought proper." In Benton's opinion, the Missouri 
Compromise saved the Union and became a "national 
compact," which "good faith and the harmony and 
stability of the Union deserved to be cherished next 
after the Constitution." None of its contemporary 
opponents had stated a Constitutional objection. As 
late as 1847, Calhoun had voted to extend the Missouri 
Compromise line to the Pacific Ocean. Reverdy 
Johnson, Buchanan, and Polk all praised the act, as had 
Clay and Jefferson Davis. P. R. Barbour and Henry 
Baldwin, who voted for the act in Congress, were later 
justices of the Supreme Court. Benton had voted 
for the confirmation of every one of the sitting justices, 
except Curtis, and was friendly to the Court; but he 
believed that 125 "the decisions, being political, are 
dependent upon moral considerations for their effect. 
They cannot be enforced. Influence, not authority, 
is the only power the Court can wield." 

John A. Andrew of Massachusetts 126 published an 
"Analysis of the Dred Scott Case" in which he main- 
tained that the "majority of the Court had no occasion 
to follow the negroes into the Territory" of Minnesota, 
because Scott had either been made free by the residence 

128 Page 121. 

m Vide Nation for April, 1892, p. 311. 



ROGER BROOKE TANEY 399 

in Illinois, or his status depended, as the Court held, 
not upon the laws of the State of Illinois, where he had 
been, but upon those of the State of Missouri, where he 
lived when the suit was brought. 127 In either event, 
the Missouri Compromise was not relevant to the case. 
Among the magazine articles attacking the decision, 
four stand out as of especial importance. Nathan Hale 
wrote a very able criticism, which appeared in the 
Christian Examiner for July 1857. 128 Wittily stating 
that the opinion as issued shows by its pagination that 
it neither begins nor concludes a volume of reports, he 
wrote that it may then be discussed as not final. 
Against Taney's statement of the lack of legal rights of 
negroes, Hale sets up the counter statement that: 
"They are a race of men with rights equal to the whites, 
to which race some individuals are subject." The 
article is temperate, though decided in tone, hoping 
that the decision is "bratam fulmen et inane." The 
North Carolina case of State v. Manuel decided the 
question of negro citizenship, for "all that any one 
wishes to establish, is that a man of color may be a 
citizen of a State," and then he may sue in the United 
States Courts, if the other party to the suit be a citizen 
of a different State. In Williams v. Ash, 129 only 14 
years before, Taney had recognized that black men 
could be parties to suits in Federal Courts. Hale 
admitted that Scott might have remained in slavery, 
because his master, as an officer of the army, had not 
acquired a residence in Illinois or Minnesota; but 
he insisted that Congress, in making rules for a territory, 

127 Gray and Lowell wrote an article upon the case, which was printed in 
20 Law Reporter 61. 

128 Vol. 63, p. 65. 
129 1 Howard 12. 



400 ROGER BROOKE TANEY 

has nothing to do with the status of persons not in- 
habitants of the territory, while the Slave States, as a 
class, do not hold as property the negro race, as a class. 
A negro is a slave, only because the laws of the State 
in which he resides declare him to be such, and, in 
Prigg v. Pennsylvania, the Supreme Court said that 
slavery was a "mere municipal regulation." There 
being no such regulation in a territory, how is the slave 
carried to Kansas to be held, — under the laws of 
Maryland, or of Texas, or of some other slave State? 

In the August number of the New Englander, 
published at New Haven, two Yale professors made 
notable contributions to the subject, by the articles 
they wrote for that magazine. President Theodore 
D. Woolsey dissected Justice Daniel's Roman Law, and 
showed how faulty it was, 130 while Prof. William A. 
Larned, of the Department of English, contributed a 
splendid unsigned article upon "Negro Citizenship." 
He maintained, at the outset, that the importance of the 
case was not confined to negroes, but that the opinion 
had "introduced a mode of interpreting the Constitu- 
tion," which, "carried to its legitimate results," would 
render that document an "instrument of oppression to 
the whites, as well as to the blacks. It has denied the 
fundamental principles upon which American democ- 
racy rests, and which distinguish it from every democ- 
racy, ancient or modern, which has ever existed. 
Besides, it has given the authority of the highest judicial 
tribunal in the land to all those paltry prejudices against 
the negroes which are so disgraceful to our country- 
men." The article is a carefully reasoned discussion, 
not an appeal to the feelings. 

130 Vol. 15, p. 345. 



ROGER BROOKE TANEY 401 

Professor Lamed 131 examined this question of citizen- 
ship. He began with the statement that, at the adop- 
tion of the Federal Constitution, there was a body of 
citizens of the United States, made up entirely of citizens 
of the States, and that free negroes were citizens of some 
of these States. "The present body of citizens of the 
United States is made up, in part, of the descendants 
of these original citizens, both white and black." Con- 
gress has no power to select which citizens of States are 
to become citizens of the United States, but "each 
State is to determine what free persons, born within its 
limits, shall be citizens of such State, and, thereby, 
citizens of the United States." Otherwise, there would 
be no protection "from the hazard of a consolidated and 
arbitrary National Government." The Constitution 
"superadded" a "general citizenship" to the "particular 
citizenship of the individual States." Consequently, 
free negroes, who "constituted a portion of the citizens 
of the several States," at the time when the Constitu- 
tion was adopted," constituted also a portion of the 
people of the United States, and to them, as well as to 
the other citizens of the States, appertained the im- 
munities and privileges of general citizenship of the 
United States." Their descendants possess these rights 
and Lamed, rather fancifully, argues that Scott may 
be one of them. He is on firmer ground, when he calls 
attention to the fact that Taney ignored the considera- 
tion of the question, whether a franchise has been taken 
away, not whether one has been granted, de novo. 132 

The fact that the Federal Government alone can 
naturalize foreigners does not prove that it can prevent 

131 15 New Englander 489. 

132 Larned, p. 497, charges Taney with confusing negroes with negro slaves, 
and with using "unfair statements and appeals to prejudice." 



402 ROGER BROOKE TANEY 

a State from making any native born persons citizens. 
The burden of proof is on Taney here, and he has not 
borne it. Whether negroes were citizens of the State 
in 1787 is a simple "matter of fact, to be deduced from 
the charters and laws" of those States. To the in- 
ference Taney drew from the degradation of the free 
negro, Larned opposed the fact that free negroes were 
citizens of a majority of the States in 1787. 

Taney had referred to the Declaration of In- 
dependence as not including free negroes in its state- 
ment that "all men" were created free and equal. 
Larned boldly meets him with the admission that the 
signers — "these great men, were inconsistent," as are 
"all great philosophical statesmen, whose views are in 
advance of the age in which they live, and the circum- 
stances which surround them." Neither Athenian nor 
Roman governments were founded upon the great 
truth "which asserts the equality of men as to natural 
rights. Hence slavery was not inconsistent with the 
Athenian democracy, or with the Roman republic. 
But it is the character and glory of the American democ- 
racy that it rests on the natural rights of man. Hence, 
slavery is inconsistent, not with the mere fact that our 
State governments are democratical, but with the funda- 
mental principle upon which these democracies are 

founded But, in order to be consistent, 

shall we renounce the very fundamental principles of our 
government?" The "self evidence" of the truths 
uttered in the Declaration "is founded upon the com- 
mon nature of man." Since 1776, Larned thought the 
change of sentiment as to the blacks had not been 
favorable to them, as Taney had stated; but, on the 
contrary, "among the most eminent Southern States- 
men" there had been "a great departure and apostasy 
from the opinions of the Revolutionary men." 



ROGER BROOKE TANEY 403 

The only negroes referred to in the Federal Constitu- 
tion are slaves, and of course are not citizens. Whether 
the people regarded free negroes as having equal rights 
to themselves or not, in several States they regarded 
them as entitled to the one right of citizenship. Taney 
was manifestly judging of the slave states of the 
Revolutionary period, by their condition in 1857, in 
1 ' the consolidated empire of slavery. ' ' Taney magnified 
the inconveniences of the Southern States from negro 
citizens of the North. The States did not guard them- 
selves in the Constitution against negro citizens of 
other States by an express clause, or by implication; 
consequently, the founders did not have the same fear 
as Taney. 

Larned sums up by saying that, in Taney's opinion, 
"the reasoning is as weak as the decision is revolting 
to every just and humane feeling." With such reason- 
ing, the Constitution "can be made to mean anything 
a dominant party chooses to have it." The decision 
gives a power to the National Government over the 
States which "stops not short of reducing the States 
into mere dependencies of the National Government; 
. . . . for it depends, according to the decision, 
upon the National Government alone to determine 
what citizens of the States shall be selected to constitute 
the sovereign people of the United States." 133 

Taney never used the term "National Government," 
always speaking of the "General Government," but 
there was much truth in what Larned said, of the 
nationalizing influence of Taney's decisions, which 
reached their climax, as we shall see, in the decision in 
the case of Ableman v. Booth. 

133 Page 524. 



404 ROGER BROOKE TANEY 

The last of these important articles, written by 
Thomas Farrar, appeared in the North American 
Review for October, 1857. 134 He makes a keen dis- 
section of the opinions, calling especial attention to the 
lack of agreement of the justices, and is severe upon the 
"groundless assumptions, false premises, and sophistical 
conclusions" of the Court's opinion. The "validity" 
of the whole subsequent proceedings depends upon the 
answer "given to the question as to the jurisdiction of 
the Court." The whole authority of the case hinges 
on this point, " and it also "involves the character of the 
Court, the personal credit of the judges, and the honor 
of the nation." Since the delivery of the opinions, 
Farrar asserted that Taney's opinion had "sustained 
material interpolations, one or more of the others have 
been reproduced entire since that time, and others have 
undergone alterations, more or less material." 135 

Having decided that the Court had no jurisdiction, 
Taney went on to take up the "monstrous" position 
that "any descendant of imported African slaves, 
however remote, " cannot be a citizen. Farrar raises the 
question as to citizenship of the United States, separate 
from that of the States, which question was settled by 
the Fourteenth Amendment. After deciding that Scott 
was a slave, and could not sue, the Court went on ; for 
"there was yet much ground to be possessed," and held 
the Missouri Compromise invalid, though this decision 
was of no consequence to Scott. 

Farrar summed up his contentions in the statement 
that, "by grasping at too much, the Court have lost the 

134 Vol. 85, pp. 392-415. 

135 Farrar, p. 400, suggests Grier and Campbell as having altered their 
opinions. I have found no evidence of any change except in Taney's, Wayne's 
and Curtis's opinions, and Wayne's is unimportant. 



ROGER BROOKE TANEY 405 

whole." As a "political manual, or text book," the 
decision will form a "rallying point and ear-mark for 
political partisans. " The time for the Missouri Compro- 
mise is past. Stockholders will not bring slaves to 
Free States, nor Free States "desist from investing free 
colored inhabitants with any, or all, the rights of citizen- 
ship, whenever they choose" to do so. The chief result 
which Farrar foresaw of the decision was the "loss of 
confidence in the sound judicial integrity and strictly 
legal character of the tribunal" — a result which "may 
well be accounted the greatest political calamity which 
this country, under our forms of government, could 
sustain." 

Later comment on the opinion by Northern men has 
been no more favorable than the earlier criticism. 
Horace Greeley 136 wrote that "the reader will be puzzled 
to decide whether law, humanity, or history is more 
flagrantly defied" by Taney. "The people are treated 
as inclining to usurp the power of excluding human 
bondage from their territorial possessions, so the Court 
decides that they have no rights in the premises, no 
power to act on the question." 

J. M. Ashley of Ohio, in the House of Representatives, 
on February 13, 1868, attacked the decision bitterly, 
and made the unfounded charge that the rehearing of 
the case had been given, so that the Court might learn 
whether the Executive, with the army and navy, would 
support the usurpation. 137 

Henry Wilson 138 wrote, in 1874, that the decision's 
"interpretations and rulings were untrue in fact, bar- 

136 American Conflict, I, 251, 264. 

137 Cong. Globe 40th Cong., 3rd Sess., App. 211. See also Globe, 38th 
Cong., 1st Sess., App. 366. 

188 Rise and Fall of the Slave Power, II, 523, 533. 



406 ROGER BROOKE TANEY 

barous in spirit, absolutely revolutionary in their scope 
and intent, inhuman toward the black, and despotic 
and defiant towards the white population of the land." 
Instead of leaving slavery, as had been done in Prigg v. 
Pennsylvania, as a "matter of municipal regulation," 
it made it a "creation of the organic law of the land. 
. . . . The Constitution was no longer the sacred 
shrine of liberty, but the frowning Bastile of a most 
intolerable despotism." 139 Von Hoist 140 speaks of 
Taney's "shallow and arbitrary" reasoning, and main- 
tains that the Constitutional provisions 141 on the fugitive 
slaves and the foreign slave trade show that that instru- 
ment distinguished slaves from other forms of property. 
As late as 1892, the Nation, in reviewing Carson's 
j"Supreme Court," stated that the decision "ought 
never have been made, should never be forgiven." 
The tribunal was not acting judicially, and the "dis- 
cordant fiat" displayed such diverse reasoning as to 
be disgraceful. 142 Carson himself had said 143 that, " in 
a moment of infatuation," Wayne "became convinced 
that the Court could settle political and moral questions 
for all time." The Court yielded to his view, and, 
"by a judgment, which they vainly endeavored to induce 
the country to believe was not extra judicial, " sought to 
"settle the most agitated question of the day. The 

139 A. M. Ellis, in 15 Atlantic Monthly, 156, 161, for Feb. 1865, spoke of 
the Dred Scott Case as "the lowest depth." His anti-slavery feelings made 
him depreciate Taney, and to say "he was not venal, nor corrupt, nor a respec- 
ter of persons, but had a disposition to serve the cause of evil 

There is little in all his judgments to raise him above the rank of respectable 
jurists. His own State was tearing off the poisoned robe, in the very hour in 
which he was called before the judge of mankind." 

140 Const. Hist., VI, 32, 
111 Const. Hist., VI, 42. 

142 Nation, Apr. 7, 1892, p. 269. 

143 Pages 366 to 375. 



ROGER BROOKE TANEY 407 

judgment was pronounced, but was promptly reversed 
by the dread tribunal of war. " Carson considered that, 
having declared Dred Scott not a citizen, the Court 
ought to have dismissed the case. No portion of 
Taney's argument is "more labored or constrained than 
the attempt to show that, after disposing of the plea 
in abatement, which, when sustained, as it had been 
upon demurrer, ousted the jurisdiction of the Court, 
the Court had still a right to enter upon a discussion 
of the merits of the case The real wrong- 
doing, of which the Chief Justice was guilty, was in 
attempting, by judicial utterance, to enter upon the 
settlement of questions purely political; which were 
beyond the pale of judicial authority, and which no 
prudent judge would have undertaken to discuss. It 
was a blunder worse than a crime, from the consequences 
of which he and his associates can never escape. The 
decision "did more to undermine the influence of this 
great tribunal and prostrate the personal influence of 
its members, as well as to blacken their record, than can 
be predicted of any other cause to be found in the 
length and breadth of our judicial career. " 

T. W. Balch recently summed up the matter, briefly, 
thus: the "Supreme Court was attempting to settle by 
a judicial decision, based ostensibly upon legal grounds, 
an economic difference of fundamental importance, 
which could only be decided by a trial of actual 
strength." 144 

Biddle, a life long Democrat, 145 insists upon "the 
great ingenuity and knowledge of the political history 
of this country" shown by Taney; but is forced to admit 
that Curtis's opinion is "profound in its examination 

144 A World Court, p. 69. 

145 Const. Hist., pp. 179 to 181. 



408 ROGER BROOKE TANEY 

of the sources of the law upon the subject, luminous and 
learned in its consideration of the political and judicial 
history of the country, and convincing in the conclusions 
to which it arrives." Taney was carried "beyond the 
proper limitations" of a plea in abatement. Curtis 
proved, to Biddle's mind, that free negroes, whose an- 
cestors had been slaves, had acquired citizenship, 
and that by history, by the "inherent force" of the 
words of the Constitution, 146 and by "all fair and reason- 
able rules of construction," the Missouri Compromise 
was constitutional, and further, that the Supreme Court 
was not bound to follow the Missouri Court, which both 
disregarded the law and reversed the earlier decisions. 

James G. Blaine, although an anti-slavery man, 
wrote one of the fairest estimates of the Dred Scott 
Case. 147 The decision did not settle the slavery 
question, but rendered "the contest more intense and 
more bitter. It was received throughout the North 
with scorn and indignation. It entered at once into 
the political discussions of the people, and remained 
there; until, with all other issues on the slavery question, 

it was remanded to the arbitrament of war 

The decision developed a more determined type of 
antislavery agitation." Men remembered the rejection 
of the Whig nominations of Crittenden and Badger for 
seats in the Court. "Perhaps, in the whole history of 
judicial decisions, no two opinions were ever so widely 
read by the mass of the people outside of the legal 
profession, " as Taney's and Curtis's. After the opinons 
had been delivered, Fessenden of Maine said, in 
the Senate, that Buchanan would never have been 
elected, had the decision been pronounced before the 

146 Art. IV, Sec. 3, paragraph 3. 

147 Twenty years in Congress, I, 131-134. 



ROGER BROOKE TANEY 409 

election, and that, if Fremont had been elected, "we 
should never have heard of a doctrine, so utterly at 
variance with all truth, so utterly destitute of all 
legal logic, so founded on error, and so nonsupported by 
anything resembling argument." 

Blaine reminds us that "personally upright and 
honest as the judges were individually known to be, 
there was a convinction in the minds of a majority of 
Northern people that, on all issues affecting the institu- 
tion of slavery, they were unable to deliver a just 
judgment." 

The Chief Justice "was not only a man of great 
attainments, but was singularly pure and upright in his 
life and conversation. Had his personal life and charac- 
ter been less exalted, or his legal learning less eminent, 
there would have been less surprise and indignation." 
The lapse of years showed many antislavery men that 
it was unjust to condemn him more than the other 
justices who agreed in the decision. Time had not 
abated the "Northern hostility" to the decision, when 
Blaine wrote, over twenty-five years later, but had 

thrown a more generous light upon the character and action of the 
eminent Chief Justice who pronounced it. More allowance is 
made for the excitement, and for what he believed to be the exi- 
gency of the hour, for the sentiments in which he had been edu- 
cated, for the force of association and for his genuine belief 
that he was doing a valuable work towards the preservation of 
the Union. His views were held by millions of people around 
him, and he was swept along by a current which, with so many, 
had proved irresistible. Coming to the Bench from Jackson's 
cabinet, fresh from the angry controversies of that partisan era, 
he had proved a most acceptable and impartial judge, earning 
renown and escaping censure, until he dealt directly with the 
question of slavery. Whatever harm he may have done in that 



410 ROGER BROOKE TANEY 

decision was speedily overruled by war, and the country can now 
contemplate a venerable jurist, in robes that were never soiled by 
corruption, leading a long life of labor and sacrifice and achieving 
a fame in his profession second only to that of Marshall. 

Professor Edward S. Corwin, in his "Doctrine of 
Judicial Review," 148 discusses the decision with per- 
spicacity and acumen. His conclusion is that the deci- 
sion was not obiter, nor a following of Calhoun's ideas, 
nor did Curtis refute Taney's argument upon the 
question of Scott's title to a prima facie citizenship. 
"None of these results, however, goes far to relieve the 
decision of its discreditable character as a judicial 
utterance." It was not an "usurpation;" but was "a 
gross abuse of trust," and it put the "Court in the 
background," during the years of the Civil War and of 
Reconstruction . 

After a dispassionate, careful study of the decision, 
Professor Corwin. 149 concluded that Taney's opinion 
was not "obiter, " but was intended to be "the deliberate 
utterance of the Court, intended to have the force of 
law." 

He stated that the charge against Taney amounted 
to saying that the action of the Chief Justice, in passing 
upon the constitutionality of the Missouri Compromise 
Act, was "illogical," because it was "inconsistent with 
the earlier part of his opinion," which removed "from 
the Court's consideration the record of the case in the 
lower court, and with it any basis for a pronouncement 
upon the constitutional question;" and that the action 
was also "in disregard of precedent," which "exacted 
that the Court should not pass upon issues other than 

148 Pages 129 to 159, a reprint of an article in 17 Am. Hist. Rev. 
H9 Doctrine of Judicial Review, p. 133. 



ROGER BROOKE TANEY 411 

those the decision of which was strictly necessary to 
the determination of the case before it; and, particularly, 
than it should not, unnecessarily, pronounce a legislative 
enactment unconstitutional." 

The primary question was "what disposition to make 
of the plea in abatement, which the Circuit Court 
overruled, thereby taking jurisdiction of the case?" 
The majority of the Court ruled that this plea was 
before it, and that the decision of the Circuit Court 
thereon was subject to review. Was it necessarily 
illogical, after pronouncing against the jurisdiction of 
the Circuit Court, and sustaining the plea in abatement, 
for the Court to consider the further record, by which the 
constitutional question was raised? Corwin 's view is 
that, waiving the question of the plea of abatement, in 
Taney's theory of the case, the question of jurisdiction 
remained on the face of the bill of exceptions taken by 
the plaintiff, since Scott admits that he was born a 
slave and contends that he has become free, and so can 
sue in the character of a citizen. Consequently, Taney 
did not canvass the case on its merits, which he could 
have done with propriety only had he chosen to ignore 
the question of jurisdiction, but fortified his decision 150 
by reviewing the issues raised in exceptions, and can- 
vassed the matter of jurisdiction afresh. The validity 
of Taney's proceeding thus rests on the answer to this 
question: "It is allowable for a court to base a decision 
upon more than one ground, and, if it does so, does the 
auxiliary part of the decision become obiter?" Corwin 
refers to two views as to obiter matter in opinions: (1) 
that no part of an opinion is decisive, except such part 
as was absolutely necessary to determine the rights of 
the parties; or, (2) that every part of an opinion is 

150 Corwin, p. 136. 



412 ROGER BROOKE TANEY 

decisive which represents the deliberate application of 
the judicial mind to the questions legitimately raised in 
argument. The latter view he holds as correct, for the 
former one, "by keeping open a choice by interested 
parties between the diverse grounds of decision, would 
leave the law unsettled, precisely in proportion as the 
Courts had determined to settle it." 

Corwin further holds that constitutional questions 
should be decided by a Court, whenever possible, since 
cases in which such questions occur "warrant an ex- 
ceptionally broad view of the legal value of judicial 
opinion. " Taney's critics take their view of the proper 
scope of judicial decisions from Common Law pre- 
cedents, rather than from American Constitutional Law, 
in which the only feasible definition of obiter is "a more 
or less casual utterance by a court or the members 
thereof, upon some point not deemed by the Court 
itself to be strictly before it." 151 Corwin maintains 
that Taney had a "clear right to canvass the question 
of Dred Scott's servitude, in support of his decision that 
Dred Scott was not a citizen of the United States, and 
that he had the same right to canvass the question of the 
constitutionality of the Missouri Compromise, in support 
of his decision that Dred Scott was a slave." To all 
these points, Taney's attention was directed by the 
arguments of the counsel, and to all of them he might 
cast it with propriety. "If the decision, that the 
Missouri Compromise is unconstitutional, be unwar- 
rantable," it is not because it was obiter, but because 
it was incorrect. 

151 He instances the fact that Marshall, in Brown v. Md., 12 Wheaton 419, 
says he "supposes," and that Taney in the License Cases, 5 Howard 574, ignores 
this pronouncement, while treating the rest of the opinion as law, although the 
second part of it, dealing with the commerce clause, was unnecessary, since 
the immediate issue had already been disposed of. 



ROGER BROOKE TANEY 413 

The entire Court agreed that Congress, in governing 
the territory, was controlled by the Constitution; but 
no common ground was found as to why the Missouri 
Compromise Act conflicted therewith. 152 Campbell took 
the extremest position, stating that the only power 
Congress had in the territories, in addition to those 
as the legislature for the whole country, was to make 
rules of a "conservatory character" for the "preserva- 
tion of the public domain and its preparation for sale, 
or disposition." Consequently, it is the duty of the 
Federal Government to recognize as property whatever 
any State may "validly determine to be property." 
Benton showed that this theory, that the Federal 
Government must not only admit, but also protect 
slavery, was not yet ten years old, but Corwin thinks 
he was wrong, in saying that the theory rested ex- 
clusively on Calhoun's principles. Daniel went almost 
as far as Campbell in representing the power of Congress, 
in governing the territories, as a "simple proprietary 
power of supervision," yet he rejected Calhoun's notion 
that Congress was a mere trustee of the States. 153 

Catron had inflicted the death penalty on the Western 
Circuit for nearly twenty years, and could not admit 
that Congress had no power over the Territories, but 
said the Missouri Compromise was void, because in- 
compatible with the treaty of cession of Louisiana, and 
with the spirit of the Constitution, which stipulated for 
the citizens of each state equal privileges with those of 
every other State. Corwin is forced to exclaim that: 
"a more extravagant line of reasoning it would be 
difficult to conceive!" The treaty clearly could not 

152 Corwin, p. 141. 

153 Corwin remarks that Catron, Grier, Wayne, and Taney would not read 
the Constitution "through the spectacles of the prophet of nullification." 



414 ROGER BROOKE TANEY 

prejudice Congress in the exercise of its Constitutional 
powers. The Constitutional provision referred to per- 
sonal, not political rights, and, furthermore, there was 
no guarantee elsewhere to any one of rights he enjoyed 
in his home State. 

"The most strongly nationalistic, or more properly 
federalistic, of all the opinions upon the constitutional 
question, was that of the Chief Justice," Corwin re- 
marks. Taney followed Marshall, in tracing the power 
of Congress to govern Territories to its power to acquire 
them, which annexation might be made, only in order 
to make new States eventually. 

Corwin also upholds Taney's correctness in "asserting 
for slave property a position within the Constitution, 
equal, to that of any other kind of property," and 
maintains that McLean's argument is "erroneous and 
beside the point," in stating that slavery was contrary 
to natural law, and that consequently, the Constitution 
recognized property in slaves in States, but not in 
Territories. "All property," Corwin rejoins, "is ac- 
quired in accordance with the laws of a particular State ; 
but, when acquired, the right of the owner thereto is 
to be protected by the Constitution." Taney went too 
far, when he said that "the only power conferred is the 
power, coupled with the duty, of guarding and protect- 
ing the owner in his rights." Congress did not owe the 
"duty always to exercise a protective attitude towards 
all property in the exercise of all its powers, nor did slave 
property occupy a position of superiority to other 
property." 

Taney relied on the due process of law clause, but this 
argument seemed irrelevant to Corwin, for property 
may be taken in case of an offence against the laws. 
It is implied that there has been no such offence, which 



ROGER BROOKE TANEY 415 

implication assumes the unconstitutionality of the 
Missouri Compromise — the point to be proved. If it 
was constitutional, it was a law, and any attempt to 
take a slave into a territory in contravention thereof, 
was an offence against the laws. Furthermore, due 
process of law simply involves correct judicial pro- 
cedure and here no question of procedure was involved. 
Not the method of enforcement of the Missouri Com- 
promise was opposed, but any enforcement at all of it; 
objection was made not to the mode of operation, but 
to the substance. 

Corwin, however, finds that the Constitutional law 
of the period causes these difficulties to disappear; for 
it was "generally acknowledged that there were certain 
limits of the legislative power," which it could not exceed 
in the control of the owner's rights to property. In 
some States, this principle had been established on the 
basis of the phrases "due process of law," or "law of 
the land, " so the argument was not irrelevant. By the 
same line of reasoning, Corwin makes the petitio prin- 
cipii vanish. For, if the due process of law clause 
prohibited legislation bearing with undue severity on 
existing property, the term law means law, as it stood 
before new legislation had been enacted, and the phrase 
"offences against the laws," means those against the 
laws so defined. In 1857, every court acknowledged 
that private property could be taken for public use, 
but there agreement ceased. 154 Taney entered on the 

154 Many States had already passed laws prohibiting the sale of liquor which 
laws applied to liquors in existence at the moment when the law went into 
effect, and these confiscatory acts were upheld in 12 States. Only in New 
York, in 1856, in a case decided between the two arguments of the Dred Scott 
Case, was there a disallowance of such a Statute as contrary to due process 
of law. Although Taney makes no reference to this decision, (Wynehamer v. 
People, 13 N. Y. 378), Corwin, rather strangely, has little doubt but that he took 



416 ROGER BROOKE TANEY 

Constitutional question to settle Congressional power 
over slavery actually existing and over slaves brought 
into the territory henceforth. The only effect of the 
Missouri Compromise, was to withdraw from owners 
entering the territory the right to bring in slaves. 
Curtis's statements were correct that this act stood on 
the same footing as to constitutionality as the North 
West Ordinance, or the laws of Maryland and Virginia 
against the importation of slaves. So that Constitu- 
tion, by providing that the foreign slave trade should 
not be prohibited before 1808, assumed that otherwise 
Congress might earlier have restricted that trade under 
the power to regulate commerce. 

Corwin, however, considers that Taney chose his 
"ground with prescience." The Republicans followed 
McLean, rather than Curtis, and seizing the word, 
liberty, in the Fifth Amendment, argued that Congress 
could not admit slavery into a territory. 155 In later 
cases, the courts have applied the doctrine of due proc- 
ess of law, especially in interpreting the fourteenth 
Amendment, and the terms liberty and property have 
been given an extended signification, while the doctrine 
that "all reasonable laws" give due process of law, 
has obviated the "legislative stagnation which the earlier 
decisions logically imported." Consequently, the Dred 
Scott Case has a "place in the line of precedents, from 
which had finally emerged one of the most fruitful 
doctrines of modern Constitutional law." 

As to the question of citizenship, Corwin alleged that 
the "fundamental issue" between Taney and Curtis, 

his doctrine from the New York Court! This case Corwin admits would not 
have affected the constitutionality of the Missouri Compromise as to Scott, 
who was brought into the territory after 1820, and the New York doctrine was 
in " flat conflict" with that of a dozen States. 
155 Corwin, p. 153. 



ROGER BROOKE TANEY 417 

though "not very specifically joined, is not whether 
there may not have been negro citizens of States in 
1787, who, upon the adoption of the Constitution, 
became citizens of the United States; but from what 
source citizenship, within the recognition of the Con- 
stitution, was supposed to flow thenceforth." Curtis 
held that citizenship came through the States; but 
Taney's view was that a "citizen of the United States, 
to use his frequent phrase, unless descended from those 
who became citizens at the time of the adoption of the 
Constitution, owed his character as such to some 
intervention of national authority — in short, he was a 
product of the National government." Corwin con- 
sidered Curtis's view as "doubtless that of the framers" 
of the Constitution, while Taney's pretence is, "at 
this point, particularly hollow;" but is a very logical 
and indeed inevitable deduction from his whole body 
of doctrine with reference to the dual nature of the 
federal system: the States, independent and sovereign 
within their sphere; and the National Government 
within its. This theory Taney had voiced from the 
beginning of his judicial career, so that at this point 
he was, at least, acting consistently with his part. 156 

Professor T. C. Smith had occasion, a few years 
ago, 157 to study this decision. Prior to it, he found the 
Court was cautious to avoid partisanship in slavery 
cases, and that "purely legal reasoning" was applied 
to the interpretation of the Constitution. In this case, 
however, Taney's opinion was "not so much a judicial 
statement as an elaborate essay upon the history of 
slavery under the Constitution, and a justification of the 
most radical Southern positions regarding the insti- 
ll Corwin, p. 157. 
157 "Parties and Slavery,'' in Hart's "American Nation" Series, pp. 195-208. 



418 ROGER BROOKE TANEY 

tution Had Taney's opinion, with all its 

glaring inconsistencies, stood as that of a united court," 
it would have had great influence; "but it was almost 
as much damaged as supported by the variety in the 
concurring opinions." Professor Smith continued: 
"The political character of the whole performance, was 
stamped upon it in the phraseology of the opinion, as 
well as in the logical incoherence and superfluousness of 

the arguments, however able The only 

results of the Dred Scott Case were to damage the 
prestige of the Court in the North, and to stimulate a 
sectional hostility which threatened to recoil upon the 
heads of the judges themselves." As a consequence, 
the great nationalizing decision which the Court soon 
made in the case of Ableman v. Booth, was looked upon 
throughout the free States as tinged with pro-slavery 
views. 

Finally, we may quote the view of one of the members 
of the Supreme Court itself, in the opinion of Mr. 
Justice Brown, who said in 1901 : 158 

The difficulty with the Dred Scott Case was that the Court re- 
fused to make a distinction between property in general and a 
wholly exceptional class of property. Mr. Benton tersely stated 
that distinction, by saying that the Virginian might carry his 
slave with him into the Territory, but he could not carry with him 
the Virginia law which made him a slave. 

»» Downs v. Bidwell, 182 U. S. Rep. 244. 




CHIEF JUSTICE ROGER BROOKE TANEY 

From a portrait by Richard Blossom Farley, owned by Dickinson College 



CHAPTER XIII 

The End of the Era (1856-1861) 

Although the Dred Scott Case was by far the most 
important one decided by the Supreme Court in the 
December term of 1856, it was not the only one in which 
Taney filed an opinion. 1 In a suit for a mandamus, to 
order a Minnesota Court to vacate an order of disbar- 
ment, he upheld the Court as performing a judicial act 
within the scope of its jurisdiction. 2 The rights of a 
patentee were held not to extend to a foreign vessel 
entering a United States port, equipped with the patent- 
ed invention in the foreign country. The invention 
was only used while sailing. The plaintiff's contention 
would confer on patentees political power, in the Court's 
opinion, and enable them to embarrass the treaty-making 
power and the Congressional power to regulate foreign 
commerce. 3 

In a case concerning a lien upon a vessel, the barque 
Laura of Plymouth, for repairs made in Chile, Taney 
filed a long dissenting opinion, in which McLean and 
Wayne joined him. The freight money would have 
paid for the repairs, but for the diversion of the vessel's 
course by the master, with the assistance of the libel- 

1 Minor opinions of his were: (1) Prevost v. Greneaux, 19 Howard 7 (Inher- 
itance tax of Louisiana upon foreigners approved); (2) Morgan v. Curtinies 
19. Howard 8 (Record imperfect and no counsel for defendant-case con- 
tinued); (3) Shaffer v. Scradley 19 Howard 16 (Supreme Court had no jurisdic- 
tion to review decision of Louisiana Court as to land in that State) ; (4) Stramer 
v. West 19 Howard 182 (Appeal not taken in time), (5) Burke v. Gaines 19 How- 
ard 388 (Ejectment). 

2 Ex parte Secombe, 19 Howard 9. 

3 Brown v. Duchesne, 19 Howard 183. 

419 



420 ROGER BROOKE TANEY 

lants, and no lien was allowed them by the Court, 
Justice Curtis rendering the opinion. 4 Taney main- 
tained that almost the whole of the coasting trade was 
carried on by New England vessels under similar con- 
tracts, with masters "sailing upon a lay," as it was called. 
The captain was master of the vessel at the time and 
not the owners. Taney retained the same opinion, 
which he had held in the Circuit Court. 

Taney's most important opinion at the December 
Term of 1857 was also a dissenting one, which Biddle 5 
styled as being so strong "as to leave the professional 
mind in a considerable state of incertitude." 6 The case 
involved a vessel which had been seized under an at- 
tachment issuing from a Pennsylvania Court. After- 
wards a libel had been filed in the United States Dis- 
trict Court for mariner's wages. The Court's decision 
was that this libel did not divest the State Court of 
jurisdiction. Taney considered the case, not as one con- 
cerning the relative powers of State and Nation; but 
merely as one of relative powers and duties of Admiralty 
and Common Law Courts. Each has its appropriate 
sphere of action. The Court of Common Law has no 
right to place itself within the sphere of action appro- 
priated peculiarly to the Admiralty Court and thereby 
to impede it in the discharge of duties imposed on it by 
the Constitution and laws. The lien of seamen is a first 
and paramount claim upon a vessel. No Court of Com- 
mon Law can enforce, or displace this claim. A general 
creditor of a ship owner has no lien on a vessel and the 
sheriff had in his legal custody only the interest of the 

4 Thomas v. Osborn, 19 Howard 22. Taney's dissent at p. 33. 

5 Const. Hist., p. 185. 

6 Taylor v. Carryle, 20 Howard 583. Taney's dissent is at pp. 601 & ff. 
Three justices agreed with him. See Connor's Campbell, p. 49. Connor refers 
to Taney's "spirited and strong" opinion. 



ROGER BROOKE TANEY 421 

owner, after the liens had been heard and adjudicated. 
Otherwise, seamen might have to wait twelve months 
for payment. Neither a State nor a Federal Court of 
Common Law can impede an Admiralty Court. If 
the Court "intended to say that, in the administration 
of judicial power, the tribunals of the States and the 
United States are to be regarded as the tribunals of 
separate and independent sovereignties, dealing with 
each other in this respect upon the principles which 
govern the comity of nations, I cannot assent to it. The 
Constitution of the United States is as much a part of 
the law of Pennsylvania as its own constitution and the 
laws passed by the General Government, pursuant to 
the Constitution, are as obligatory upon the Courts of 
the States, as upon those of the United States; and they 
are equally bound to respect and uphold the acts and 
process of the courts of the United States, when acting 
within the scope of its legitimate authority." After 
this discriminating statement of the relation of Federal 
and State Courts, Taney continued; "the Court, which 
has no jurisdiction over the subject matter, must not 
lay hold of some other interest and, therefore, withdraw 
maritime liens from the Admiralty Court for an inde- 
finite period." Pennsylvania can have no admiralty 
court and, therefore, has no concurrent jurisdiction in 
the matter. 

With emphasis, Taney states that: "While, in my 
judgment, this court should be the last court in the 
Union to exercise powers not authorized in the Con- 
stitution, it should be the last court in the Union to 
retreat from duties which the Constitution and laws 
have imposed." He pays Coke 7 this tribute: "Every 

7 Further on in the opinion, he wrote: "These jealousies and suspicions of 
Lord Coke undoubtedly grew out of the vehement conflicts, personal as well 
as political, in which he was so prominently engaged during all his life-time." 



422 ROGER BROOKE TANEY 

one who, in early life, has passed through the usual 
studies of the Common Law feels the influence of his 
opinions afterwards in all matters connected with legal 
inquiries," but Coke was too bitter in his opposition to 
the admiralty court. At the time when Taney wrote 
this opinion, he thought that, if one looked for "examples 
worthy respect and commendation" in English law, these 
examples are found in the "elevated and enlightened 
character of its present courts of justice and their mutual 
respect and consideration for the rights and authority 
of each other, without any display of jealousy or sus- 
picion." Taney continued with the statement: 

I can see no grounds for jealousy, or enmity, to the admiralty 
jurisdiction. It has in it no quality inconsistent with, or unfavor- 
able to, free institutions. The simplicity and celerity of its pro- 
ceedings make a jurisdiction of that kind a necessity, in every just 
and enlightened commercial nation. The delays unavoidably 
involved in a Court of Common Law, from its rules and modes of 
proceeding, are equivalent to a denial of justice, where rights of 
seamen, or maritime contracts, or torts, are concerned and sea- 
faring men are the witnesses to prove them, and the public con- 
fidence is conclusively proved, by the well known fact, that in the 
great majority of cases, where there is a choice of jurisdictions, the 
party seeks his remedy in the court of admiralty, in preference to 
the Court of Common Law of the State, however eminent and 
distinguished the State's tribunal may be. 8 

8 Minor cases in which Taney filed opinions for the Court are: (1) Brown 
v. Shannon, 20 Howard 55 (jurisdiction, patent rights) ; (2) Thompson v. Shelden, 
20 Howard (continuance of case); (3) Carroll v. Dorsey, 20 Howard 204 (writ 
of error); (4) Payne v. Niles, 20 Howard 219 (writ of error); (5) Covington 
Drawbridge Co. v. Shepherd, 20 Howard 227 (jurisdiction, citizenship); (6) U. S. 
v. Breitling, 20 Howard 252 (Bill of exceptions); (7) Hemmingway v. Fisher 
(Admiralty Judgment), 20 Howard 255; (8) U. S. v. Pacheco, 20 Howard 261 
(appeal, length of time) ; (9) Barton v. Forsyth, 20 Howard 532 (Exceptions 
must be taken while the jury are at the bar). 



ROGER BROOKE TANEY 423 

Two cases were concerned with the bonds of the State 
of Arkansas. 9 "Those who deal in the bonds or obliga- 
tions of a sovereign State are aware that they must rely 
altogether on the sense of justice and good faith of the 
State, and that the judiciary of the State cannot inter- 
fere to enforce these contracts without the consent of 
the State, and the Courts of the United States are express- 
ly prohibited from exercising such a jurisdiction." If 
the suitor refused to file his bonds in Court, the Court 
cannot inquire whether the law acted hardly, or un- 
justly. 10 

In 1858, Taney handled the subject of the demarca- 
tion of the control of Congress over commerce and the 
right of municipalities to protect themselves with his 
"accustomed ability," 11 in deciding the case of Cushing 
v. Owners of the Ship, John Fraser, 12 holding therein that 
an ordinance of the City of Charleston as to a vessel in 
the harbor, determining where it might lie, for how long, 
and with what light, was not in conflict with the law of 
Congress regulating commerce, or with the general 
admiralty jursidiction of the United States, but was 
valid. 13 In Converse v. Greeley 14 the Court held that 

9 Beers v. Arkansas, 20 Howard 527, and Bank of Washington v. Arkansas, 

20 Howard 530. 

10 In Selden v. Myers, 20 Howard 506, Taney said that a person taking a 
promissory note and deed in payment for a restaurant in the District of Colum- 
bia, from an illiterate man must show, in order to enforce his claim, that at 
least che material parts of the instruments were read and fully explained to the 
illiterate person before execution and that the signer fully understood their 
meaning and effect. If this fact is not established, parol evidence is not admit- 
ted to show that the contract was really different from the writing. 

11 Biddle, Const. Hist., 186. 

12 21 Howard 185. A collision case. 

13 Minor decisions at this term were (1) Richmond v. Milwaukee (Appeal), 

21 Howard 80 and 391; (2) Rau v. Minn. & N. W. R. Co. (Motion to dismiss), 
21 Howard 82; (3) Kelsey v. Forsyth (Procedure), 21 Howard 85; (4) Ins. Co. of 
Valley of Va. v. Mordecai (writ of error), 21 Howard 195; (5) Campbell v. 



424 ROGER BROOKE TANEY 

the Secretary of the Treasury could not order a collector 
to perform duties outside of the light house district of 
which he was superintendent, without extra pay for the 
additional services. The law does not forbid compensa- 
tion for extra services which have no affinity or connec- 
tion with the duties of the office holder, Taney said, 
speaking for the Court. 

In a divorce case, 15 Taney dissented without an opinion 
from a decision by the Court upholding a Wisconsin 
divorce, secured there by a husband, who went to that 
State after his wife had secured a judicial separation 
from him in New York. 

Taney's most important opinion, however, of the year 
1858 was that in the case of Ableman v. Booth 16 and it 
was to Taney's own mind one of his "most satisfactory 
opinions." 17 There were two cases, both constituting 
one transaction and disposed of in one unanimous deci- 
sion of the Court. 18 Sherman M. Booth was accused of 

Boyreau (writ of error), 21 Howard 225; (6) Montgomery v. Anderson (Juris- 
diction of Circuit Court in Admiralty) 21 Howard 386; (7) Baltimore v. For- 
syth (Jurisdiction), 21 Howard 389; (8) Mason v. Gamble (writ of error), 
21 Howard 390; (9) Porter v. Foley (writ of error), 21 Howard 393. 

14 21 Howard 462. 

15 Barber v. Barber, 21 Howard 600. 

16 21 Howard 506; Tyler, p. 608. See Daniel W. Howe "Political History 
of Secession," Chapter XI. 

17 Tyler, p. 392. Carson "Supreme Court," p. 293, considers that Taney 
was "most emphatic in the maintenance of the supremacy of the Federal 
Law." See also T. W. Balch "A World Court," p. 67. 

18 Willoughby, "Supreme Court of the United States," pp. 46, 50, is severe 
in his criticism of this opinion, writing that Taney, "in his analysis of govern- 
ment, never got further back than the State. If we were to accept the rea- 
soning found in Taney's opinion, it was the people of the States, and never 
the people in their sovereign capacity, who acted throughout the period of 
constitution-making from 1765 to 1789." "In considering Taney's attitude 
in this case, we may, possibly, be warranted in remembering that, in this par- 
ticular instance, the Federal law which he was upholding was one passed in the 
interests of the slaveholding party, with which his sympathies lay." 



ROGER BROOKE TANEY 425 

having aided, on March 11, 1854, in the escape, at Mil- 
waukee, Wisconsin, of a fugitive slave from the deputy 
marshal, who held the negro in custody under a warrant 
issued by the United States District Judge, in accordance 
with the provisions of the Fugitive Slave Law of 1850. 
That law, a part of Clay's last Compromise, so far from 
settling the slave question, had greatly exacerbated con- 
ditions and, by its questionable provisions, had aroused 
the wrath of the people of the Free States. In several of 
the Northern States, so-called Personal Liberty Laws 
were passed, in the effort to nullify the Federal Statute. 
Booth was arrested and, on May 26, was committed 
to jail, in custody of the United States Marshal. On 
the following day, he applied to a judge of the Wisconsin 
Supreme Court for a writ of habeas corpus, stating that 
Stephen V. R. Ableman the Marshal, restrained him of 
his liberty, illegally, because the arrest was made under 
the Fugitive Slave law of 1850 which was unconstitu- 
tional. Upon the hearing, the Justice decided that 
Booth's detention was illegal and freed him. Ableman 
then applied to the Supreme Court for a writ of cer- 
tiorari, so that the proceedings at the hearing might 
be brought before that Court for revision. The cer- 
tiorari was allowed and the case was argued in July, 
after which argument the Court affirmed the decision, 
discharging Booth from imprisonment. In October, 
Ableman sued out a writ of error to the United States 
Supreme Court and, in obedience thereto, the record 
and proceedings were duly certified by the State Court's 
clerk. Booth then in December 1854, filed a memoran- 
dum in the United States Supreme Court, submitting 
it as his argument. After the judgment was entered in 
the State Court and before the writ of error was sued 
out, that Court entered upon its record that, in the final 



426 ROGER BROOKE TANEY 

judgment, the validity of the Fugitive Slave Acts was 
drawn in question and the decision was against their 
validity. This certificate was not necessary to give the 
Federal Court jurisdiction, because the proceedings on 
their face showed that these questions arose and how 
they were decided; but it showed "that, at that time," 
in Taney's words, "the Supreme Court of Wisconsin did 
not question their obligation to obey the writ of error, 
nor the authority" of the Federal Court to "reexamine 
their judgment," and "the certificate is given for the 
purpose of placing, distinctly, on the record the points 
that were raised and decided in that Court, in order that 
this Court might have no difficulty in exercising its 
appellate power and pronouncing its judgment upon all 
of them." 

On January 4, 1855, Booth was indicted in the United 
States Court for the offence and, having been tried by a 
jury, was found guilty, on January 23, 1855, and was 
sentenced to imprisonment for one month and to pay a 
fine of $1000. On January 26, Booth applied to the 
Supreme Court of Wisconsin and was released, on Feb- 
ruary 3, after a hearing, on a writ of habeas corpus. 
The Attorney General of the United States then made 
a petition to the Chief Justice of the Supreme Court of 
the United States, stating the facts in the case and aver- 
ring that the State Court had no jurisdiction. A writ 
of error was issued and served on the clerk of the Su- 
preme Court of Wisconsin on May 30, 1855. No return 
was made to this writ and the district attorney made 
affidavit that one of the Judges of the State Court told 
him that that Court had directed the clerk to make no 
return, and to enter no orders upon the records of the 
Court concerning it. The United States Supreme 
Court then, on the motion of the Attorney General, 



ROGER BROOKE TANEY 427 

laid a rule on the clerk to make a return to the writ of 
error. This was not done and the Attorney General was 
given leave, in February 1857, to file a certified copy of 
the record in the State Court, which should have the 
same effect, as if returned by the clerk with the writ of 
error. The Wisconsin Judges behaved as badly as pos- 
sible for men who had taken an oath to support the 
Constitution of the United States, and their court was 
as contumacious as the South Carolinians were a few 
months later, while the defendant was so indifferent 
that he was not represented by counsel. The Supreme 
Court did not permit this judicial nulification of Federal 
authority to go uncondemned. After waiting until the 
two cases were ready for decision, the Attorney General 
was heard for the prosecution and Taney delivered the 
opinion of the Court, having the pamphlet arguments 
filed by Booth and opinions of the Supreme Court of 
Wisconsin before them, to show the grounds on which 
the defence could rely. 

Taney called attention to the fact that, in the first 
case, the State authorities claimed the right to discharge 
a prisoner who had been committed by a United States 
Commissioner for an offence against a national law and, 
in the second case, the State Supreme Court went a "step 
further" and, upon a "summary and collateral proceed- 
ing" by habeas corpus, claimed and exercised jurisdiction 
over the proceedings and judgment of a District Court of 
the United States," and then "determined that their 
decision is final and conclusive upon all the Courts of the 
United States and ordered their clerk to disregard and 
refuse obedience to the writ of error issued" by the 
National Supreme Court. The gravity of the case was 
shown by Taney's statement that "the supremacy of the 
State Courts over the courts of the United States is now, 



428 ROGER BROOKE TANEY 

for the first time, asserted and acted upon in the Supreme 
Court of a State." The Chief Justice's language is 
calm and temperate, but his tone is firm. He strikes at 
the heart of the matter, when he states that "the para- 
mount power of the State Court lies at the foundation of 
these decisions;" since their "commentaries" upon the 
fugitive slave law were "out of place," unless "they had 
the power to revise and control the proceedings" in this 
case. Their acts "can rest upon no other foundation." 
How can anyone speak of Taney as a States rights man 
after reading this opinion ? 

The alternative was a stern one; for, 

If the judicial power, exercised in this instance, has been reserved 
to the States, no offence against the laws of the United States 
can be punished by their own courts, without the permission, 
and according to the judgment, of the Courts of the State in which 
the party happens to be imprisoned; for, if the Supreme Court of 
Wisconsin possessed the power it has exercised, in relation to 
offences against the act of Congress in question, it, necessarily, 
follows that they must have the same judicial authority in relation 
to any other law of the United States And, more- 
over, if the power is possessed by the Supreme Court of the State 
of Wisconsin, it must belong equally to every other State, when 
the prisoner is within its territorial limits; and it is very certain 
that the State courts would not always agree in opinion; and it 
would often happen that an act, which was admitted to be an 
offence, and justly punished, in one State, would be regarded as 
innocent, and, indeed, as praiseworthy in another. 

The inconvenience of doing away with the supremacy 
of the Federal tribunals could hardly be stated more 
clearly. Taney felt that to state this result of a lack of 
Federal supremacy showed the essential need of it. 
Hard cases, proverbially, make bad law and the hard 
case of a fugitive negro, seized under an oppresive statute 



ROGER BROOKE TANEY 429 

had led the Wisconsin Court to take indefensible action. 
"No one will suppose," Taney continued with indis- 
putable logic, "that a Government, which has now lasted 
nearly seventy years, enforcing its laws by its own tri- 
bunals and preserving the union of the States, could have 
lasted a single year, or fulfilled the high trusts committed 
to it, if offences against its laws could not have been 
punished, without the consent of the State in which the 
culprit was found." 

The Wisconsin judges did not state whence they 
claimed this authority, but Taney places them in this 
dilemma, that if they possess this jurisdiction, "they 
must derive it either from the United States, or the 
State." The United States did not confer it upon them 
and the State could not do so, since, "although the State 
of Wisconsin is sovereign within its territorial limits to a 
certain extent, yet that sovereignty is limited and re- 
stricted by the Constitution of the United States. And 
the powers of the General Government, and of the State, 
although both exist and are exercised within the same 
territorial limits, are yet separate and independent 
sovereignties, acting separately and independently of 
each other within their respective spheres. And the 
sphere of action appropriated to the United States is as 
far beyond the reach of the judicial process issued by a 
State judge, or a State court, as if the line of division was 
traced by a line of landmarks and monuments, visible 
to the eye." Taney felt that it was due to the State 
to say that this "claim of paramount jurisdiction in the 
State Courts over the courts of the United States" is 
not "asserted, or countenanced, by the Constitution or 
laws of the State of Wisconsin" and, indeed, the State 
Court's decision appeared to be flatly against a State 
Statute. 



430 ROGER BROOKE TANEY 

Taney then, in noble language, reiterated his state- 
ment that 

Questions of this kind must always depend upon the Constitu- 
tion and laws of the United States, and not of a State. The Con- 
stitution was not formed merely to guard the States against danger 
from foreign nations; but mainly to secure union and harmony 
at home; for, if this object could be attained, there would be but 
little danger from abroad; and, to accomplish this purpose, it was 
felt by the statesmen who framed the Constitution and by the peo- 
ple who adopted it, that it was necessary, that many of the rights 
of sovereignty which the States then possessed, should be ceded 
to the general government; and that, in the sphere of action 
assigned to it, it should be supreme, and strong enough to execute 
its own laws, by its own tribunals, without interruption from a 
State, or from State authorities. And it was evident that anything 
short of this would be inadequate to the main objects for which 
that Government was established, and that local interests, local 
passions, or prejudices, incited and fostered by individuals for 
sinister purposes, would lead to acts of aggression and injustice 
by one State upon the rights of another, which would ultimately 
terminate in violence and force, unless there was a common arbiter 
between them, armed with power enough to protect and guard 
the rights of all, by appropriate laws, to be carried into execution 
peacefully by its judicial tribunals. 

In these sentences, the old Federalist, the Attorney 
General of Andrew Jackson whose toast was the "Federal 
Union, it must and shall be preserved," the successor of 
John Marshall, spoke worthily of his past and of his 
predecessor. 

Taney continued his great argument by calling atten- 
tion to the fact that 

The supremacy thus conferred on this Government could not 
peacefully be maintained, unless it was clothed with judicial 
power, equally paramount in authority to carry it into execution: 



ROGER BROOKE TANEY 431 

for, if left to the courts of justice of the several States, conflicting 
decisions would unavoidably take place, and the local tribunals 
could hardly be expected to be always free from the local influences 
of which we have spoken. And the Constitution, and laws and 
treaties, of the United States and the powers granted to the 
Federal Government, would soon receive different interpretations 
in different States and the Government of the United States would 
soon become one thing in one State and another thing in another. 
It was essential, therefore, to the very existence of the govern- 
ment, that it should have the power of establishing courts of justice, 
altogether independent of State power, to carry into effect its own 
laws, and that a tribunal should be established, in which all cases 
which might arise under the Constitution, and laws and treaties, 
of the United States, whether in a State Court, or a court of the 
United States, should be, finally and conclusively, decided. With- 
out such a tribunal, it is obvious that there would be no uniformity 
of judicial decision; and that the supremacy, .... so 
carefully provided for, .... could not possibly be 
maintained peacefully, unless it was associated with this paramount 
judicial authority. 

Accordingly it was conferred on the General Government, in 

clear, precise, and comprehensive terms And it is 

manifest that this ultimate appellate power, in a tribunal created 
by the Constitution itself, was deemed essential to secure the 
independence and supremacy of the general Government in the 
sphere of action assigned to it; to make the Constitution and laws 
of the United States uniform and the same in every State; and to 
guard against evils which would inevitably arise from conflicting 
opinions between the Courts of a State and the United States, if 
there was no common arbiter authorized to decide between them. 

Taney pointed out that "the importance which the 
framers of the Constitution attached to such a tribunal, 
for the purpose of preserving internal tranquillity, is 
strikingly manifested by the clause which gives this 
Court jurisdiction over the sovereign States which com- 
pose the Union, when a controversy arises between 



432 ROGER BROOKE TANEY 

them," and that "experience has demonstrated that this 
power was not unwisely surrendered by the States;" 
since "irritating and angry controversies" between "ad- 
joining States, in relation to their respective boundaries," 
might have ended in "force and violence, but for the 
power vested in this Court." 

He then turned to the power of the Court to interpret 
the laws. 

The sovereignty created by the Constitution was limited in its 
powers of legislation; and if it passed a law not authorized by its 
enumerated powers, it was not to be regarded as the supreme law 
of the land, nor were the State judges bound to carry it into 
execution. And as the Courts of a State and the Courts of the 
United States might and, indeed, certainly would often differ, as 
to the extent of the powers conferred by the General Government, 
it was manifest that serious controversies would arise between the 
authorities of the United States and of the States, which must be 
settled by force of arms, unless some tribunal was created to decide 
between them finally and without appeal. 

The Constitution contained a provision against this 
danger, by placing within the jurisdiction of the Federal 
Courts "all cases arising under the Constitution and the 
laws of the United States," leaving out the words 
"made in pursuance thereof," as applied to the laws; 
so that "the judicial power covers every legislative act 
of Congress, whether it be made within the limits of its 
delegated powers, or be an assumption of power beyond 
the grants in the Constitution." 

He pointed out that "this judicial power" was "in- 
dispensable, not merely to maintain the supremacy of 
the laws of the United States, but also to guard the States 
from any encroachment upon their reserved rights by 
the General Government." As a consequence, "by the 
very terms of the grant, the Constitution is under "the 



ROGER BROOKE TANEY 433 

judges' view, when any act of Congress is brought 
before them, and it is their duty to declare the law void 
and refuse to execute it, if it is not pursuant to the legis- 
lative powers conferred on Congress." No clearer nor 
more cogent statement of the rightfulness of the Court's 
power to declare laws unconstitutional was ever made. 

And, as the final appellate power, in all such questions, is given 
to this Court, controversies as to the respective powers of the 
United States and the State, instead of being determined by mili- 
tary and physical force, are heard, investigated, and finally settled, 
with the calmness and deliberation of judicial inquiry. And no 
one can fail to see that if such an arbiter had not been provided in 
our complicated system of government, internal tranquillity could 
not have been preserved; and if such controversies were left to 
arbitrament of physical force, our governments, State and National, 
would soon cease to be governments of laws, and revolutions by 
force of arms would take the place of courts of justice and judicial 
decisions. 

To prevent the danger of changing the tribunal, be- 
cause of "individual ambition or interests and powerful 
political combinations," the framers of the government 
"ingrafted it upon the Constitution itself." "So long 
. . . as this Constitution shall endure, this tribunal 
must exist with it; deciding, in the peaceful forms of 
judicial proceeding, the angry and irritating contro- 
versies between sovereignties, which, in other countries, 
have been determined by the arbitrament of force." 

The Judiciary Act of 1789, which carried "into 
execution the powers vested in the judicial department" 
was enacted by the First Congress at its first session, 
when that body had many members, who had been also 
members of the Constitutional Convention, and under- 
stood "the meaning and intention of the great instru- 
ment, which they had so anxiously and deliberately 



434 ROGER BROOKE TANEY 

considered, clause by clause, and assisted to frame." 
The law they passed proves that their interpretation of the 
appellate powers of the Supreme Court was that which 
Taney had just enunciated, since they provided for the 
issuance of writs of error from the Supreme Court to a 
State Court, "whenever a right had been claimed under 
the Constitution or laws of the United States, and the 
decision of the State Courts was against it." Thus we 
see the "great importance, which the patriots and states- 
men of the First Congress, attached to this appellate 
power, and the foresight and care with which they 
guarded its free and independent exercise against inter- 
ference, or obstruction by States, or State tribunals." 

Next he turned to the case in hand and sternly said 
that the Supreme Court of Wisconsin "refuses obedience 
to the writ of error and regards its own judgment as 
final. It has not only reversed and annulled the judg- 
ment of the District Court of the United States, but it 
has reversed and annulled the provisions of the Consti- 
tution itself and the Act of Congress of 1789, and made 
the superior and appellate tribunal the inferior and 
subordinate one." 

The State Judge had the right to issue the writ of 
habeas corpus in any case, provided that it "does not 
appear, when the application is made, that the person 
imprisoned is in custody under the authority of the 
United States;" but, when the State Judge is "apprised" 
that the party is in such custody he "can proceed no 
further;" for he then knows that "the prisoner is within 
the jurisdiction of another Government." 

No State Judge or Court, after they are judicially informed that 
the party is imprisoned under the authority of the United States, 
has any right to interfere with him, or to require him to be brought 
before them. And if the authority of a State, in the form of 



ROGER BROOKE TANEY 435 

judicial process, or otherwise, should attempt to control the 
marshal, or other authorized officer, or agent of the United States, 
in any respect, in the custody of his prisoner, it would be his duty 
to resist it, and to call to his aid any force that might be necessary 
to maintain the authority of law against illegal interference. 

These are strong and fine words. 
Taney next turns to view the question from the side 
of the States. 

Nor is there anything in this supremacy of the general Govern- 
ment, or the jurisdiction of its judicial tribunals, to awaken the 
jealousy, or offend the natural and just pride of State sovereignty. 
Neither this Government, nor the powers of which we were speak- 
ing, were forced upon the States. The Constitution of the United 
States, with all the powers conferred by it upon the general Gov- 
ernment and surrendered by the States, was the voluntary act of 
the people of the several States, deliberately done for their own 
protection and safety against injustice. And their anxiety to 
preserve it in full force, in all its powers, and to guard against 
resistance to, or evasion of its authority, on the part of a State, 
is proved by the clause which requires that the members of the 
State Legislatures, and all executive and judicial officers of the 
several States (as well as those of the General Government) shall 
be bound, by oath or affirmation, to support the Constitution. . . 

Now it, certainly, can be no humiliation to the citizen of a repub- 
lic to yield a ready obedience to the laws, as administered by the 
constituted authorities. On the contrary, it is among his first 
and highest duties as a citizen, because free government cannot 
exist without it. Nor can it be inconsistent with the dignity of a 
sovereign State to observe faithfully, and in the spirit of sincerity 
and truth, the compact into which it voluntarily entered, when it 
became a State of this Union. On the contrary, the highest honor 
of sovereignty is untarnished faith. And, certainly, no faith could 
be more deliberately and solemnly pledged than that which every 
State has plighted to the other States to support- the Constitution 
as it is, in all its provisions, until they shall be altered in the 
manner which the Constitution itself prescribes 



436 ROGER BROOKE TANEY 

And no power is more clearly conferred, by the Constitution and 
laws of the United States, than the power of this Court to decide, 
ultimately and finally, all cases arising under such Constitution 
and laws; and, for that purpose, to bring here for revision, by writ 
of error, the judgment of a State Court, where such questions 
have arisen and the right claimed under them denied by the 
highest judicial tribunal in the State. 

In conclusion, and by way of brief postscript, so "as 
not to be misunderstood" the Court stated that, on its 
judgment, the Fugitive Slave Law was, "in all its pro- 
visions, fully authorized by the Constitution." 

The opinion is remarkable for its strength and viriliity, 
especially when we remember that its author was a man 
eighty two years old. The Federalist teachings of his 
youth had not been forgotten and the doctrines learned 
in youth were clearly set forth by him in his old age. 
It is the irony of fate, that the South, which rejoiced at 
the reversal of the decree of the Wisconsin Court; by 
its secession was so soon to traverse and flout Taney's 
elaborate constitutional argument, from which the 
North and West gained a valuable precedent, though, 
for the most part, they had disliked the upholding of the 
Fugitive Slave Law. 

In the remainder of 1859 and in the early months of 
I860, Taney pronounced only two decisions of the court 
and neither of these is of importance. 19 In the early 
portion of 1860, Taney maintained a correspondence 
with Van Buren, as the latter, who was compiling his 
memoirs, asked for information. 20 In these letters, 

19 (1) Hodge v. Williams, 22 Howard 87, (writ of error cannot be amended); 
(2) Brewster v. Warfield, 22 Howard 119, (Interest on promissory note in the 
Territory of Minnesota); (3) Haney v. Baltimore Steam Packet Co., 23 How- 
ard 287, (collision between steamer and sailing vessel in the Chesapeake. 
Dissents, in long opinion). 

*° 10 Md. Hist. Mag., pp. 15 & ff. 



ROGER BROOKE TANEY 437 

Taney spoke of a recent illness and of recovery from a 
fall, of his having burned the letters which he had 
formerly received from Van Buren and of the good care 
which his unmarried daughter, Ellen, took of him. 

The term of Court which began in December, 1860, 
virtually closed Taney's important opinions as Chief 
Justice on the Bench of the Supreme Court; for, although 
he lived for over three more years and continued to hold 
his post, the decision in the case of Kentucky v. Denison 21 
is his last noteworthy one delivered in Washington. He 
delivered a brief eulogy upon his associate Mr. Justice 
Daniel at the opening of the term 22 and gave the decision 
of the Court in eight cases during the session. 23 He 
held that a stamp duty laid by California on bills of 
lading for gold or silver transported from the State, 
was a tax on exports and, therefore, invalid and that 
the case could not be distinguished in principle from 
Brown v. Maryland — Taney's old case continually 
reappearing. 24 

Upholding the Federal power, he held that a corporate 
franchise to take tolls on a canal can not be seized and 
sold under a fieri facias, unless the proceedings were 
authorized by a Federal Statute. 25 

21 24 Howard 66. 

22 24 Howard VI. 

23 Minor cases were: (1) Sampson v. Welsh, 24 Howard 207 (libel on ship 
for damages); (2) Wiggins v. Gray, 24 Howard 303 (Practice); (3) U. S. v. 
Curtis, 24 Howard 346 (Mexican land grant in California); (4) Lessee of Smith 
v. McCann (Ejectment in Maryland, rather an important case), 24 Howard 
398; (5) Riddall v. Bryan, 24 Howard 420 (Trespass, Appeal from decree of 
Maryland Court of Appeals); (6) Tracy v. Holcombe, 24 Howard 426 (Final 
judgment); (7) Myra Clark Gaines v. Hennen, 24 Howard 553. (Dissent. 
No opinion.) 

24 Almy v. Cal., 24 Howard 169. Biddle praises this judgment. Const. 
Hist. 188. 

25 The Canal was that from Havre de Grace, along the Susquehanna River 
and into Pennsylvania. Gue v. Tidewater Canal Co., 24 Howard 257. The 
case was an appeal from the Circuit Court in Maryland. 



438 ROGER BROOKE TANEY 

The decision in the case of Kentucky v. Denison was 
pronounced by Taney on March 13, 1861, nine days 
after he had administered the oath of office as President 
to Abraham Lincoln. 26 Biddle 27 speaks of Taney's 
"tone of almost pathetic dignity" in this opinion and 
Tyler speaks of the "calm, serene spirit of justice" 
which pervaded this and the other chief opinions of his 
last years; 28 but William C. Coleman, an able Baltmore 
attorney, in a recent article, pronounced a harsh judg- 
ment upon it: 29 "we can scarcely call it reasoning, for 
it is totally unconvincing as a piece of Constitutional 
interpretation." Taney's "reasoning was political, not 
legal," and though the case is still of authority, it seems 
to Coleman irreconcilable with the undoubted power 
granted the Federal Government by the Constitution 30 
to carry out all the provisions of that document. 

The circumstances of the case were that a Grand Jury 
in Kentucky had indicted Willis Lago, a "free man of 
color, for seducing and enticing a slave to leave her 
master and aiding and assisting the said slave in an 
attempt to make her escape." Lago fled to Ohio to 
avoid arrest and the Governor of Kentucky duly re- 
quested the delivery of Lago. Governor William Deni- 
son of Ohio, by the advice of his Attorney General, 
refused to comply with this demand, whereupon the 
State of Kentucky, by its Governor, Beriah Magoffin, 
made a motion, asking Denison to show cause why the 
Supreme Court should not issue a mandamus, command- 
ing him to deliver Lago, to the Kentucky authorities, 
that he might be removed to the latter State for trial. 

26 Tyler, pp. 413, 626. 

27 Const. Hist., p. 187. 

28 Tyler, p. 417. 

29 31 Harvard L. R., pp. 229, 233, 245. October, 1917, "The State as 
Defendant." 

30 Article 4, Section 2, 



ROGER BROOKE TANEY 439 

Taney delivered the opinion of the unanimous Court, 
"sensible of the importance of this case and of the great 
interest and gravity of the question involved in it." 

By a careful historical investigation, he proved that, 
in all cases where original jurisdiction is given by the 
Constitution, this Court has authority to exercise it, 
without any further act of Congress to regulate its pro- 
cess; that the Governor is the proper officer to bring a 
suit for a State, or to be notified as representing the 
State, when it is a defendant; and that the writ of 
mandamus (being no longer a prerogative writ or one of 
grace) is the only mode by which Kentucky's claim can 
be enforced, if that claim is a rightful one. 

He then quoted the Constitutional provision as to the 
interstate extradition of criminals and stated that the 
words "treason, felony, or other crime" "embrace every 
act forbidden and made punishable by a law of the 
State." The Governor of Ohio insisted that the words 
quoted from the Constitution "must be restricted and 
confined to offences already known to the Common Law 
and to the usage of nations, and regarded as offences in 
every civilized community and that they do not extend 
to acts made offences by local statutes, growing out of 
local circumstances, nor to offences against ordinary 
police regulations." Taney denied the correctness of 
this construction, which was "founded upon an obvious 
mistake as to the purposes for which the words 'treason 
and felony' were introduced. They were introduced for 
the purpose of guarding against any restriction of the 
word crime, and to prevent this provision from being 
construed by the rules and usages of independent nations 
in compacts for delivering up fugitives from justice." 
These words show that "this compact was not to be 
regarded or construed as an ordinary treaty for extradi- 



440 ROGER BROOKE TANEY 

tion, between nations altogether independent of each 
other, but was intended to embrace political offences 
against the sovereignty of the State, as well as all other 
crimes." 

The Constitution was declared by Taney to be a 
"compact," binding the States "to give aid and assist- 
ance to each other in executing their laws, and to sup- 
port each other, in preserving order and law within its 
confines, whenever such aid was needed." He main- 
tained that "the Statesmen who framed the Constitu- 
tion were fully sensible that, from the complex character 
of the Government, it must fail, unless the States 
mutually supported each other and the general Govern- 
ment, and that nothing would be more likely to disturb 
its peace and end in discord, than permitting an offender 
against the laws of a State, by passing over a mathemati- 
cal line which divides it from another, to defy its 
process. ' ' 

Taney then showed that the New England Confed- 
eration of 1 643 and the Articles of Confederation 
contained clauses providing for extradition and stated 
that in the change from the term "high misdemeanor" 
in the Articles of Confederation to the word "crime" 
in the Constitution "the deliberate purpose" was 
shown to "include every offence known to the law 
of the State from which the party charged had fled." 
The decision asserted that "this compact, engrafted in 
the Constitution, .... gives the right to the 
executive authority of the State to demand the fugitive 
from the executive authority of the State in which 
he is found; that the right given 'to demand' implies 
that it is an absolute right; and it follows that there 
must be a correlative obligation to deliver, without any 
reference to the character of the crime charged, or to 



ROGER BROOKE TANEY 441 

the policy or laws of the State to which the fugitive has 
fled." This demand may be made, only when "the 
party was charged in the regular course of judicial pro- 
ceedings," for "the Executive Department can act only 
in subordination to the judicial Department, where 
rights of person or property are concerned, and its duty 
in those cases consists only in aiding to support the 
judicial process, and enforcing its authority, when its 
interposition for that purpose becomes necessary, and 
is called for by the Judicial Department." He then 
discussed the origin and provisions of the act of 1793, 
which provided for the procedure of such extradition. 
Under that procedure, the duty of the Governor of the 
State where the fugitive is found, was "merely minis- 
terial" and "such as every marshal and sheriff must 
perform, when process, either criminal or civil, is placed 
in his hands." "Whether the charge against Lago was 
legally and sufficiently laid in this indictment, according 
to the laws of Kentucky," in Taney's phrase, "is a 
judicial question to be decided by the Courts of the 
State, and not by the executive authority of the State 
of Ohio." 

Yet, — oh ! lame and impotent conclusion ! — the opinion 
goes on to state that "the words, 'it shall be the duty,' 
were not used as mandatory and compulsory, but as 
declaratory of the moral duty which this compact 
created." Neither the Constitution, nor the act of 
Congress provided "any means to compel the execution 
of this duty, nor inflict any punishment for neglect, 
or refusal." The Court believed that "such a power 
would place every State under the control and dominion 
of the general government" and that it was clear that 
"the Federal Government, under the Constitution, has 
not power to impose on a State officer, as such, any duty 



442 ROGER BROOKE TANEY 

whatever, and compel him to perform it." The final 
words of the opinion were that, "if the Governor of Ohio 
refuses to discharge this duty, there is no power dele- 
gated to the General Government, either through the 
judicial department, or any other department, to use any 
coercive means to compel him." 

"And upon this ground, the motion for the mandamus 
must be overruled." Though the conclusion is weak, 
yet we must remember that, it was the unanimous 
opinion of a court, of which all of the members but one 
continued loyal to the Nation throughout the whole of 
the war and that it was determined upon by them just 
before the close of Buchanan's administration, when so 
strong a Union man as Horace Greeley opposed coercion 
of the seceding States and when only those so clear 
thinking and determined as Lincoln contemplated the 
possibility of bending the will of the cotton States, so as 
to make them continue in the Union. 

We should also remember that, even in recent days, 
the Supreme Court has had great difficulty in the im- 
portant case of Virginia v. West Virginia, in endeavoring 
to find a method to enforce its decrees against a State. 
Institutions were crashing around the Court and we 
ought the rather to give it credit for pointing men, at 
this terrible crisis, to their duty to obey the Constitution, 
even if the Court could find no means of obliging men 
to perform that duty. 

This was the last of Taney's important Supreme Court 
opinions. Biddle, 31 after a careful study of them all, 
calls Taney the "able, faithful, and, with very small 
exceptions, the correct expositor" of the Constitution. 

31 Const. Hist., p. 199. He says that a "large debt of gratitude is due" 
Taney "from members of the profession of law, students of constitutional his- 
tory and lovers of free representative government throughout the world." 



ROGER BROOKE TANEY 443 

Four tickets bearing the names of Presidental candi- 
dates solicited the support of the voters of the United 
States in 1860. John C. Breckenridge represented the 
Southern Wing of the Democratic party and ran upon a 
platform, which said that, during the existence of a 
Territory, "all citizens of the United States have an 
equal right to settle with their property in the terro- 
tory," — that is to say carrying their slaves with them. 
Stephen A. Douglas headed the Northern wing of the 
Democrats. They and their leader had favored popular 
or squatter sovereignty in the territories, and had, in 
their platform, a plank that all should respect "the 
measure of restriction, whatever it may be, imposed by 
the Federal Constitution on the power of the Territorial 
legislature over the subject of the domestic relations, 
as the same has been, or shall be, finally determined by 
the Supreme Court." The remnant of the Whigs, and 
the Know-Nothings, together with many Border State 
Union men, supported John Bell, on a brief platform, 
pledging themselves to the "Constitution of the United 
States, the union of the States and the enforcement of 
the laws." 

The Republicans, representing the anti-slavery senti- 
ment of the North and West, headed by Abraham 
Lincoln, claimed that the "new doctrine, that the Con- 
stitution, of its own force, carries slavery into any or all 
of the Territories of the United States is a dangerous 
political heresy." 32 The mere statement of these facts 
shows how far the Dred Scott decision had fallen from 
settling the question of slavery in the territories. 

During the campaign, 33 a communication, designed 
probably to influence the votes of Roman Catholics, 

32 Stanwood, "History of the Presidency," Chapter 21. 

33 Tyler, p. 405. 



444 ROGER BROOKE TANEY 

appeared in a newspaper, stating that Taney favored the 
election of Douglas, a statement so unlikely that we 
hardly need any assurance that it was incorrect. George 
W. Hughes, a Congressman from Maryland and an 
intimate friend of Taney, wrote Taney, asking that he 
might be permitted to contradict the statement. On 
August 22, 1860, Taney answered the letter, declining to 
take any notice of an anonymous publication. What- 
ever he "might say, or authorize to be said, would be 
regarded" as said "by Chief Justice of the Supreme 
Court and it would be unseemly in that officer to take 
any notice of anonymous publications in newspapers." 

To answer the letter would give it too much im- 
portance and Taney had never seen any notice taken of 
it, "although I am accustomed to look over papers on 
every side of this mixed up and confused election." 
Furthermore any authorized contradiction would get up 
discussions about Taney "among all the small fry politi- 
cians," who could use this opportunity to avoid "dis- 
cussing the great principles of government, which are in 
issue in the election." Taney believed that the members 
of his Church in Baltimore were "as much divided as 
other churches and vote as independently of leaders," 
as any citizens do. 

Furthermore, Taney gave his rule of political conduct : 

Every one, whose opinion is worth anything, knows that, since 
I have been on the Bench, I have carefully abstained from taking 
any part in political movements or elections; and that I have 
done this from a sense of duty, and under the firm conviction that 
any other course would destroy the usefulness of the Supreme 
Court and create the belief that it was a mere party body and act- 
ing for the interests of a party. 

I never speak upon political issues of the day in public, nor in 
mixed companies; nor do I enter into any argument, or ever 



ROGER BROOKE TANEY 445 

express any opinion to friends who I know differ from me, or who 
I think may be so inconsiderate as to repeat what I say, in a way 
to involve my name in public discussions, as one who is taking 
part in the canvass, and supporting or opposing a particular 
candidate. To my intimate and confidential friends, as you know, 
I speak freely and without reserve. 

Abraham Lincoln was elected and, on the day upon 
which he took the oath of office administered to him by 
Taney, he said in his inaugural: 

I do not forget the position assumed by some, that constitutional 
questions are to be decided by the Supreme Court; nor do I deny 
that such decisions must be binding, in any case, upon the parties 
to a suit, while they are also entitled to very high respect and 
consideration in all parallel cases by all other departments of the 
Government. And while it is obviously possible that such decision 
may be erroneous in any given case, still the evil effect following 
it, being limited to that particular case, with the chance that it 
may be overruled and never become a precedent for other cases, 
can better be borne than could the evils of a different practice. 
At the same time, the candid citizen must confess that, if the policy 
of the Government, upon vital questions affecting the whole 
people, is to be irrevocably fixed by decisions of the Supreme Court, 
the instant they are made in ordinary litigation between parties 
in personal actions, the people will have ceased to be their own 
rulers, having to that extent practically resigned their Government 
into the hands of that eminent tribunal. 

This was clearly intended and skilfully worded as an 
attack upon the use of the Dred Scott decision as a 
precedent. Taney's friends held up their hands in 
horror, exclaiming, How awful a political heresy ! 34 yet 
Taney himself, as the instigator and defender of Jack- 
son's veto of the recharter of the United States Bank and 

"Tyler, p. 412. 



446 ROGER BROOKE TANEY 

as the courageous author of the opinion in the Genessee 
Chief, could not consistently have made any objection 
to this position. 

The older era had come to an end. Before Lincoln's 
inauguration, the cotton States had seceded from the 
Union. Four of the nine justices had been appointed 
from slave States. Taney's State, Maryland, did not 
secede, and he remained silent, giving no aid to dis- 
unionists, nor yielding the powerful support of his voice 
or pen to the successful efforts of the Unionist leaders 
— Reverdy Johnson and Henry Winter Davis. Catron 
of Tennessee and Wayne of Georgia were distinctly 
Union men and refused to follow their States, when 
these seceded. Campbell of Alabama went with his 
State and resigned from the Supreme Court. Before 
leaving Washington, on April 29, he wrote Taney 35 
expressing 

the profound impression that your eminent qualities, as a magis- 
trate and jurist, have made upon me. I shall never forget the 
uprightness, fidelity, learning, thought, and labor, that have 
been brought by you to the consideration of the judgments of the 
Court, or the urbanity, gentleness, kindness, and tolerance that 
have distinguished your intercourse with the members of the 
Court and Bar. From your hands, I have received all that I could 
have desired and, in leaving the court, I carry with me feelings 
of mingled reverence, affection, and gratitude. 

Taney's life continued for three and a half years more, 
but no important opinion from him was delivered from 
the Bench of the Supreme Court. We may, therefore, 
here sum up his achievement as Chief Justice. His 
service in standardizing the practice of the Court is 
often alluded to and was a useful one. 

35 5 Md. Hist. Mag. 35. 



ROGER BROOKE TANEY 447 

Thayer in his "Select Cases on Constitutional Law" 
prints Taney's decisions in the Charles River Bridge 
Case (1837), the License Cases (1847), Luther v. Borden 
(1848), and the Dred Scott Case (1857). He also prints 
in part Dinsman v. Wilkes (1851) and Mitchell v. 
Harmony (1851). To these, one may well add Able- 
man v. Booth (1859) and Kentucky v. Dennison (1861). 

Above any other opinion in importance stands the 
great case of the Genesee Chief (1851). These are his 
great decisions. 

T. C. Smith, 36 after a careful survey of the period, 
thought that he found, from the time of Van Buren, 
the new Democratic judges disposed to restrict the 
activity of the Court to purely legal matters, and that 
the "sudden plunge" of the Court into the slavery con- 
troversy in the Dred Scott decision was due "to a sort of 
revolution within the Court itself." Upon constitu- 
tional questions, he found a "disconnected attitude" of 
the Court and a "lack of controlling principles." 

During the fifties, the commercial expansion of the 
country absorbed the time of the Court. "Public land 
cases from the newer States and Territories, especially 
from California; admiralty cases from sea, lake, and 
river; and interstate cases called" on the Court to play 
its part in a "new era of industrial competition." He 
believed that, "whenever the Court was obliged to face 
questions involving constitutional construction, the 
Jacksonian Democracy of most of the judges prevented 
any firm and consistent policy." The "strong rever- 
ence" for States rights of most of the justices led them 
to favor the States, whenever possible without a direct 
reversal of Marshall, in Smith's opinion. He finds, 

36 "Parties and Slavery," volume 18 of Hart's "American Nation" at 
p. 190. "The Supreme Court and Slavery." 



448 ROGER BROOKE TANEY 

McLean, Wayne and Curtis, Federal in tendency, though 
inconsistent. Taney "was uncertain in his attitude, at 
times maintaining, with vigor a position identical with 
Marshall's and, at other times, adopting the full States 
Rights phraseology." Nelson of New York, Catron of 
Tennessee, Grier of Pennsylvania, Campbell of Alabama, 
and Daniel of Virginia were always on the side of States 
Rights. Smith bears witness to the opinion in the 
Genesee Chief as being worthy of Marshall himself, 
"for clearness, force, and breadth." 

Clarkson N. Potter, after a careful count, stated that 
Taney rendered about three hundred opinions of the 
Court and only seven dissenting ones, three of which 
were in admiralty cases, while he differed from the 
majority in twenty-six cases more, where either no dis- 
senting opinion was filed ; or, as was more often the case, 
he agreed with the dissenting opinion of another justice. 37 

George W. Biddle, one of the most discriminating of 
Taney's admirers, 38 considered Taney as similar to 
Marshall in his "high moral attributes, firmness of 
intellectual grasp, simplicity and directness of purpose, 
and equanimity and calmness of temperament." When 
he came to the Bench, the "Strength of the General 
Government had been demonstrated." While Chief 
Justice, he showed himself as "earnest, active, watch- 
ing with untiring industry" over the Court's "delibera- 
tions, dealing promptly and successfully with the vast 
and varied mass of litigation which came before him 
and his associates and disposing of it, with a learning 
and ability that gave entire satisfaction to the body of 

37 4 Am. Bar Ass. Reports, p. 191. A. B. Hagner in his sketch of William 
Cranch, in 3 Great American Lawyers 116, speaks of the reversal of three of 
Taney's decisions on Circuit by the Supreme Court, viz.: (1) Gills v. Oliver, 
11 Howard 548, (2) 12 Howard 111, (3) Williams v. Oliver, 17 Howard 258. 

38 Const. Hist. p. 123-125. 



ROGER BROOKE TANEY 449 

suitors, and to the people at large, and extorted the 
admiration of many of his old political opponents. The 
judgments delivered by him as the organ of this tribunal 
as well as the occasional dissents pronounced by him, 
have with rare exceptions, been finally received as cor- 
rect expositions of the law." These judgments are 
"distinguished by their clearness, directness, and firm 
grasp of the subject discussed, and, when dealing 
with constitutional subjects, for sound and weighty 
reasoning." 39 

He laid down three principles which he believed he 
he found in Taney's opinions. 40 (1) He adhered closely 
to the language of the Constitution, construing no power 
to exist which was not "found in its words or resulting 
therefrom by necessary implication." (2) He showed 
an "anxious desire to protect the several States in the 
full and unfettered exercise of the powers retained by 
them." (3) Where "room was found for a broader 
interpretation" of the Constitution, "in conformity with 
the needs and quality of right of all the States, no hesi- 
tation was felt in overpassing the narrow limits within 
which a formal construction would have confined the 
jurisdiction of the Federal Courts." 

After all, Taney's constitutional position may be 
summed up 41 by saying that he remained to the end a 
Southern Federalist, of strong prejudices, who found it 

3i I can not find any evidence in these judgments for Biddle's further claim 
that they showed thorough acquaintance with the political history of the 
Country. 

40 Const. Hist., pp. 195-197. 

41 Mikell, Taney's admirer, 4 Gt. Am. Lawyers 133, writes that Taney was 
"an independent thinker upon constitutional questions. After the counsel 
has exhausted his arguments, Taney will decide with him r after rejecting his 
arguments, on reasons worked out by himself and, not infrequently, after an 
exposition of the fallacy of such arguments more incisive and convincing than 
that furnished by the opposing counsel." I have found no proof of this. 



450 ROGER BROOKE TANEY 

very difficult to change his mind. Even when he 
thought he had done so in the doctrine of Brown v. 
Maryland, he retained to the end of his life a distrust of 
too great widening of the power of Congress to regulate 
commerce. He disliked corporations and almost all of 
the decisions which he made, which have been called 
States Rights ones were based upon one or the other 
of those grounds. 42 

42 Carson "Supreme Court," p. 295, writes that Taney's "manner and style 
are described as impressive, logical, clear, calm, argumentative, simple and 
unostentatious, addressed to the reason and not to the passions." 



CHAPTER XIV 
Taney's Career as Circuit Court Judge 

On April 8, 1836, six days after Taney had taken the 
oath of office as Chief Justice, the term of the Circuit 
Court of the United States for the Distict of Maryland 
opened in Baltimore with Taney presiding upon the 
bench. It was customary that one of the Justices of 
the Supreme Court should sit in each term of the Circuit 
Court which was held within a certain number of States 
which had been allotted to him. Taney frequently went 
to hold court in Virginia and Delaware. In Baltimore 1 
he was present nearly every April and November, at the 
terms of Court, though occasionally, the length of the 
term of the Supreme Court 2 kept him in Washington too 
long to permit him to sit in the April term. 3 

Of these Sessions, Tyler writes: 

There was always in the Court, the most perfect order. As a 
presiding officer, dignity and authority sat upon his brow. His 
own singular courtesy not only diffused itself through the bar and 
all the officers of the Court, but it was contagious among the 
crowd. No officer was permitted to look at a newspaper, but was 
required to be intent upon the proceedings of the Court. Every 
one was made to feel that he was where solemn duties were to be 
performed. 

At the beginning of a term, when the list of jurors was called, 
he attended to every name. 

1 John Quincy Adams (Memoirs X, 346) notes that he attended April 
term of Court in Baltimore held by Judges Taney and Heath. On Nov. 17, 
1846, Taney adjourned court on account of the death of Chancellor Theod- 
orick Bland and spoke eloquently of his great learning, ability and faithful 
service. Later Taney presided at a memorial bar meeting. 

2 As in 1852. 

* Taney, Dec, p. 362. 

451 



452 ROGER BROOKE TANEY 

When he heard a familiar name of a Frederick County 
juror, he "asked the marshal to tell the juror to come to 
him after the adjournment, and, if he then found the 
man to be a relative of an old acquaintance, he "made 
the kindest inquiries into their family affairs." 

A volume of opinions delivered by Taney in the Cir- 
cuit Court at Baltimore was prepared by his son-in-law, 
James Mason Campbell, Esq., and was published in 
187 1. 4 Sixty-eight cases are reported in this volume: 
thirty-four of them being at law, seven in equity, and 
twenty-seven in admiralty. In date, they range from 
1836 to the famous Merryman decision of 1861. 5 

The charge to the Grand Jury had been quite a fea- 
ture of the opening of the terms of the Circuit Court in 
Baltimore, and, when Justice Samuel Chase had sat 
there, he had taken advantage of the occasion to make 
political speeches under guise of these charges. Taney 
resolved to end the practice and his first charge on 

4 Campbell died before publication of the volume, and Frank M. Etting 
who married one of Campbell's daughters, copyrighted it. Mr. Bright- 
ley of the Philadelphia Bar read the proof. In an introductory note,Taney's 
family expressed their appreciation of these services. The volume is entitled 
"Reports of Cases at Law and Equity and in the Admiralty determined in the 
Circuit Court of the United States for the District of Maryland by Roger B. 
Taney," and contains 620 pages. In an appendix, are printed the 1836 Charge 
to the Grand Jury and Taney's Remarks on Lord Bacon's Maxims. 

B The first 270 pages are occupied with the Law Cases; pages 271to377are 
devoted to Equity Decisions and pages 379 to 609 are filled with Admiralty 
Cases. Chronologically, the cases are dated as follows: 1836, one in Admiralty; 
1837, none; 1838, two at Law and three in Admiralty; 1839, none; 1840, eight 
at Law and three in Admiralty; 1841, two at Law, one in Equity and four in 
Admiralty; 1842, one at Law; 1843, none; 1844, two in Admiralty; 1845, one at 
Law, one in Equity, and one in Admiralty; 1846, one at Law and one in Equity; 
1847, three at Law; 1848, one in Equity; 1849, two at Law; 1850, one at Law 
and one in Equity; 1851, five at Law and four in Admiralty; 1852, three at Law; 
1853, one at Law, one in Equity, and two in Admiralty; 1854, one at Law, 
one in Equity, and one in Admiralty; 1855, two at Law; 1856, one in Admiralty; 
1857, one in Admiralty; 1861, one at Law (the Ex parte Merryman Case). 



ROGER BROOKE TANEY 453 

April 8, 1836 was also his last. 6 He told the jurors that 
"precise and detailed instructions were no longer 
needed;" because, "through the diffusion of education," 
jurors had a general knowledge of their duties and the 
District Attorney would give them help, if they needed 
it. He hoped that few infractions of the law would be 
brought before them, and, therefore, would not enlarge 
upon crimes against the United States. Continuing 
the charge, he said that: "It is my earnest desire that 
we should proceed at once, with industry and energy, 
to execute the duties for which we are assembled and 
while we give to every subject brought before us the most 
ample time for full examination and elaborate judge- 
ment, not a moment should be wasted in unnecessary 
forms." 

He urged the jurors to be diligent in their inquiries, 
and careful and elaborate in their conclusions, showing 
no sympathy with criminals, who offended against a 
"criminal code so mild and forbearing as ours," and 
guarding "the innocent from injury." "In a country 
like ours," he concluded, "blessed with free institutions, 
the safety of the community depends upon the vigilant 
and firm execution of the law ; every one must be made 
to understand, and constantly to feel, that its supremacy 
will be steadily enforced by the constituted tribunals, 
and that liberty cannot exist under a feeble, relaxed, 
or indolent administration of its power, where crime goes 
unpunished and the law is contemned." 

A few of the decisions reported involve questions of 
public law. The very first case in the volume 7 was one 
in which Taney held constitutional the provision in the 
Judiciary Act of 1789, giving the United States District 

6 See Niks Reg., p. 120 for April 16, 1836; Tyler, p. 270, Taney's Dec. 615. 

7 Gittings v. Crawford, April term, 1838; Taney's Dec. 1. 



454 ROGER BROOKE TANEY 

Courts a jurisdiction over consuls in civil cases. He 
considered the grant by the Constitution to the Supreme 
Court of jurisdiction over ambassadors and consuls, 
as not an exclusive one. Consequently, a consul, who 
did not possess the immunities of an ambassador, could 
be made liable in civil suits in an inferior court. 8 At first 
sight, the decision seemed to conflict with expressions 
used in Marbury versus Madison. 9 Taney's views as to 
the proper attitude of the Circuit Court toward the 
Supreme Court are thus stated: — " It would hardly have 
been proper or decorous in the Circuit Court to dis- 
regard" Marshall's "opinions, although they were 
expressed, when the point in controversy wasnot directly 
before" the Supreme Court, but that the later case of 
the United States versus Ortega showed that the Su- 
preme Court considered the point still an open one. 10 
Taney continued as to the constitutionality of statutes 
thus: " Independent, however, of any judicial authority, 
the conclusions of my own mind must have been very 
clear and free from doubt, before I should have felt 
myself justified in pronouncing an act of Congress, 
passed in 1789, a violation of the Constitution. It was 
the first Congress that met under the Constitution and 
in it were many men who had taken a prominent and 
leading part in framing and supporting that institution, 
and who, certainly, well understood the meaning of the 
words they used." If State Courts had concurrent 

8 He followed U. S. v. Ravara, 2 Dallas 297 (1793-1794) and U. S. v. Ortega, 
11 Wheaton 467. 

9 Taney maintained that Cohens v. Va. — 6 Wheaton 378 repudiated 
and overruled some of the principles put forth in Marbury v. Madison — ■ 
2 Cranch 137— and that Osborn v. U. S. Bank— 9 Wheaton 820— was not 
pertinent, because it concerned a question of the relative jurisdiction of the 
United States and a State. 

10 Vide also Davis v. Packard 7 Peters 281. 



ROGER BROOKE TANEY 455 

jurisdiction with federal courts in some cases, why 
should the grant of original jurisdiction to the Supreme 
Court be always an exclusive one? 11 

When a Malay, born in Manila, was indicted for 
murder 12 Taney gave an interesting decision, holding that 
the Malays were not white men. The accused man was 
a subject of Spain, and had been baptized. He was one 
of the crew of the American brig, Fannie, and killed the 
Captain, the only white man on board, on October 31, 
1839, while the ship was on the high seas. The other 
members of the crew were three negroes from the United 
States and a mulatto from Nova Scotia. These, by the 
Maryland statute of 17 17, 13 were not competent to 
testify against a white, Christian, person. Taney 
stated that the Provincial Law was made for "political 
purposes, and grew out of the political and social condi- 
tion of the Colonies. The colonists were all of the white 
race, and all professed the Christian religion." No 
others were expected to come to the Province, or would 
have been recognized as equals "by the colonists, or 
deemed worthy of participating with them in the 
privileges of this community." The "only civilized 
nations" they knew, were the white Europeans. "The 
political community of the colony was composed entirely 
of white men, professing the Christian religion." "The 
white race," continued Taney, "did not admit" negroes 
or Indians "to political or social equality. They were 

11 Cohens v. Virginia showed that the construction given to Marbury v. 
Madison— that an original jurisdiction was excluded, where an appellate one 
was given and vice versa, could not be sustained, without depriving the Court 
of some of its most important and necessary powers, which, though classed as 
original, could only be exercised in an appellate form, when the question arose 
in a suit in a State Court. 

12 U. S. v. Dow, April term, 1840. Taney's Dec, 34. 

13 Not by the Common Law. 



456 ROGER BROOKE TANEY 

regarded and treated as inferiors, of whom it was lawful, 
under circumstances, to make slaves." As a natural 
result, feelings were "created that would make it dan- 
gerous' ' for whites to receive as witnesses against them- 
selves the "members of the two races which" had been 
"thus degraded." A Malay was regarded in Maryland 
as one of a race which might be enslaved. 14 The act of 
1717 made negroes and Indians incapable of being wit- 
nesses against each other in cases which might affect life 
or member from a different reason, viz.: "the barbarous 
and brutish ignorance of the two excluded classes, and 
their crude and monstrous superstitions, which rendered 
them incapable of feeling, or appreciating the obligation of 
an oath," as a Christian should. In process of time, how- 
ever, the Indians disappeared, and the negroes became 
"instructed in the doctrines of the Christian religion and 
made aware of the sanctity and obligation of an oath," 
so that the law of 1808 made them competent witnesses 
in all cases, except against white men. The trial re- 
sulted in a conviction of the Malay. 15 

A less important case grew out of a riot in Baltimore on 
June 1, 1849. 16 The mob had torn down the buildings 
of a rope walk, and the jury brought in a verdict for the 
defendant. In his charge, Taney held that, even if the 
"buildings were so dilapidated as to be a nuisance, they 
could not be abated by a riotous and tumultuous assem- 
blage." The plaintiff had to show, in order to recover 
damages, that the mob was too strong to be resisted 

14 Vide the case of a Madagascar woman in 3 H. & McH. 501. 

16 On the ground that "allegations fatally repugnant" had been made in the 
indictment, stating that the crime had been committed "then and therein," 
which was interpreted to mean in the District of Maryland and also "out of 
the jurisdiction of any State," a new trial was had, followed by a second con- 
viction. 

16 Duffy v. Baltimore, November term, 1852. Taney's Dec, 200. 



ROGER BROOKE TANEY 457 

without the aid of the civil authorities, that the city 
authorities had reasonable ground for believing that the 
mob had assembled, or would do so, and did not use 
reasonable diligence to suppress it, and that the damage 
had not occurred through a sudden excitement, which 
was not apprehended and which there was no time to 
prevent. 

In a case in which the compensation of a federal office- 
holder was involved, Taney held that he was not entitled 
to more than his salary, but that he might charge for 
acting for the Federal Government in a different capac- 
ity. 17 "There is no law which prohibits a person from 
holding two offices at the same time. As a matter of 
policy, it would certainly be highly exceptionable, in 
most cases, as a permanent arrangement; but, in the 
absence of any legal provision to the contrary," such 
a plurality was valid and, as a temporary expedient, is 
often no more expensive, but "more convenient and 
useful to the public, than to bring in a new officer to 
execute the duty." 18 

Several cases arose under the tariff laws. A charge of 
a specific duty on salt includes the sack containing it, 
on which no additional ad valorem duty is to be laid. 
Taney would not infer an intention to lay such latter 
duty, because the relative value of the sack to the con- 
tents is larger than that which the vessel, or outside 
wrapper, usually bears to the merchandise imported in 
it. When the "law was passed, it was the established 
course of trade to import fine salt in sacks," so that 

17 U. S. v. White. Taney's Dec, 152; April term, 1851. 

18 No allowance was made for hire of a porter, nor for services as pension 
agent by the navy agent at Baltimore, but allowance given for serving as 
acting purser to the naval establishment at Annapolis and for office rent to 
end of the quarter. 



458 ROGER BROOKE TANEY 

there was no unfair evasion of the law in this mode of 
importation. 19 

Hearthrugs, of worsted, made out of wool by combing, 
were not to be considered manufactures of wool, but were 
"worsted stuff goods," or non-enumerated articles. 20 

The value of blankets 21 and the importation of sugar 
from the West Indies 22 were the subjects of cases. In 
the latter case, Taney held that "the principles of jus- 
tice would seem to require that the merchant should be 
charged with duty, only upon the merchandise which 
he actually introduces into the country. He imports 
nothing more and brings in nothing more for sale or con- 
sumption .... If the duty is charged upon what 
is lost, as well as what arrives, he will pay, in almost 
every case, a higher duty upon his importation than the 
law intends to impose." 

Two cases were concerned with attempts to recover 
duties paid under protest upon pimento imported from 
Jamaica. In the one, Taney held invalid the collection 
of a greater duty than allowed by the merchant ap- 
praisers. 23 In the other, 24 Taney held that the suit might 
be brought in the name of the actual owner, as well as 
in that of the consignee, but that the protest must not 
object in general terms to the duty charged, without 
assigning a reason. 25 

Three cases were concerned with vessels' bonds. The 
schooner, Elvira, sailed from Baltimore to Havana in 

19 Karthaus v. Frick, April term, 1840. Taney's Dec, 94. 

20 The time of payment was also considered. Riggs v. Frick. Taney's 
Dec, 100; April term, 1840. 

21 Hoffman v. Williams, November term, 1842. Taney's Dec, 69. 

22 Brune v. Marriott, April term, 1849. Taney's Dec 133. 

23 Tucker v. Kane, November term, 1850. Taney's Dec, 146. 

24 Mason v. Kane, April term, 1851. Taney's Dec, 173. 

25 Bartlett v. Kane, April term, 1852. Taney's Dec, 186. This was a 
suit to recover duty on Peruvian bark paid under protest. 



ROGER BROOKE TANEY 459 

1839, and never returned, being sold there and the crew 
discharged. 26 Taney held that the bond given by the 
master, under the law of 1803, for the return of the crew 
to the United States, did not embrace this case. The 
law had been passed to protect sailors from injustice and 
despotism of the captain, and to preserve them for the 
service of our own marine, but did not extend to a case 
where the vessel did not return, However, a judgment 
was given for failure to return the register 27 of this 
vessel. The question then came up as to whom did the 
amount recovered belong, and Taney held that it was not 
liquidated damages, as the United States suffered no 
damages, but that it was a "specific penalty upon the 
owner and master, for the commission of a particular 
offence against the policy of the law," imposed "by 
reason of his violation of a duty imposed by the act of 
Congress," and consequently, a moiety should be paid 
to the collector, naval officer, and surveyor of the Port. 
The schooner, Catherine, was built in Baltimore in 
1839, and was also taken to Havana and sold there. 28 
The certificate of registry was likewise not returned. 
The vessel was seized, on the allegation that it was used 
in the slave trade, and brought to New York, where 
the court dismissed the case. The allegation was made 
in that suit that the owner was an American citizen and 
the defendant tried to use this fact before Taney to 
prove that the vessel had not been sold to a foreigner. 
Taney said that, if the vessel had been condemned, the 
fact that the owner had been an American, would have 
been even more in his favor, and that there was an 
obvious fallacy in an argument, which would enable the 

26 Montell v. U. S., April term, 1840. Taney's Dec, 24'. 

27 U. S. v. Montell. April term, 1841. Taney's Dec. 47. 

28 Allen v. U. S., November term, 1840. Taney's Dec, 112. 



460 ROGER BROOKE TANEY 

defendant to win, whichever way the sentence of the 
court in New York had been given. In fact, the ship 
had been acquitted, because it had not been used in the 
slave trade, and, if it had been acquitted on the ground 
that it was an American vessel, that judgment would 
have been conclusive only in a civil suit, and not in a 
criminal proceeding, like this one. 

Two negligence cases are reported. In the first one, 
Stockton, who owned a coach line running between 
Baltimore and Wheeling, was sued by Saltonstall, who, 
with his wife, had been passengers on one of the coaches 
in December, 1835. 29 The coach upset somewhere be- 
tween Hancock and Cumberland, and from the accident 
Mrs. Saltonstall received such severe injuries as to render 
her a cripple for life. Saltonstall alleged that the driver 
was drunk and turned the horses improperly, so that 
Saltonstall opened the door of the coach and jumped out. 
His wife followed him and the coach overturned, falling 
upon her. The defence was that the ground was icy, 
causing the horses to slip, and that, if Mr. and Mrs. 
Saltonstall had remained within the coach, they would 
not have been hurt. Taney held that the owners must 
show that proper skill and care were employed, and 
that the accident happened without their fault. If a 
passenger is injured, the presumption is that negligence 
was the cause and the disaster is a prima facie evidence of 
such negligence. The owner must show that the driver 
exercised a high degree of caution and prudence, and the 
least negligence on his part, which produced bodily 
injury to a passenger, would make the owner liable. 
The injuries were not caused by violation of contract, 
but were breaches of a duty imposed by law upon the 

29 Saltonstall v. Stockton, November term, 1838. Taney's Dec, 11. 
Affirmed by Supreme Court in 13 Peters 181. 



ROGER BROOKE TANEY 461 

carrier. If the misconduct of the driver placed the 
plaintiffs in immediate peril, which "was brought upon 
them without any fault of want of care on their side," it 
was "impossible, at that moment, to foresee whether it 
would be safer to remain in the carrage or spring from it ; 
they had nothing left to them but a choice of perils, and 
one of them must be encountered." The defendant 
"must be responsible for the consequences, although it 
may turn out that the most fortunate alternative was not 
adopted." If the driver was so overcome by extreme 
cold, that he could not manage his horses and perform 
his duty, the plaintiff cannot recover, and if there was the 
slightest evidence conducing to prove this, the question 
must be left to the jury, for the "court has no right to 
suppose that the jury would form a verdict upon slight 
and insufficient testimony, or without any testimony to 
warrant it." 

Some years later 30 an action was brought against the 
City of Baltimore to recover damages for injuries sus- 
tained by falling into Harford Run, where it crossed 
Canal Street, now Central Avenue. Taney held that 
the city authorities were exclusive judges of the time, 
place, and manner in which the streets should be opened, 
graded, paved, and made highways, and that the omis- 
sion of the city to grade and pave the street on which the 
accident occurred and to place a rail at the side of the 
Run, or to cover it, was not such negligence as would 
support the action. 

J. V. L. McMahon and Thomas S. Alexander were 
associated as counsel in the case of Budd v. Brooke's 
Lessee. 31 Some years later, McMahon spoke with great 
admiration of Taney's part in this case, an "intricate and 

30 Hughes v. Baltimore. April term 1855. Taney's Dec. 243. 

31 Tyler, 309. The case is unreported. 



462 ' ROGER BROOKE TANEY 

most perplexing" one in ejectment, which was on trial 
before Judges Taney and Heath for nearly a month. 
At the close of the case, which was hurried to enable 
Taney to attend the Supreme Court, it was expected by 
all parties that all the "complicated facts and the diffi- 
cult questions growing out of them, would have been 
fully presented to the Court by the prayers and arguments 
of the counsel on both .sides." But to the great surprise 
of the lawyers, "without a prayer or argument on either 
side," Taney delivered an opinion which "not only 
showed a perfect acquaintance with all the complicated 
facts of the case, but it also referred to, and covered 
all the numerous questions of law which were to have 
been presented by our carefully prepared prayers." 

McMahon was "entirely unprepared for the display 
of intellect by the Chief Justice," and felt that "accus- 
tomed as I had been to the manifestations of his forensic 
and judicial ability on many previous occasions, 
. . . . this outstripped them all." 

At the November term of 1847, 32 a case of an alleged 
fraudulent sale was tried. A Philadelphian was pro- 
prietor of a factory at Rockland, which was managed by 
his brother who resided there. In April, 1846, the busi- 
ness was sold to one Folwell, who resold it to the brother 
on the same day and the business was continued by him 
under the old name. In August, the Philadelphian's 
creditors sued out a writ of attachment, and seized the 
machinery and goods, claiming that the sales were with- 
out consideration, and consequently void. The resident 
brother sued the creditors for the value of the property 
seized, and for damages for breaking up his business. 
Taney said that, if the sales were fraudulent, and col- 
lusive, they were void ; that the measure of the damages 

82 Comly v. Fisher. Taney's Dec. 121. 



ROGER BROOKE TANEY 463 

was the value of the goods seized, plus the actual dam- 
ages received for breaking up the business; and that the 
sale was void, unless the change in the possession had 
been made public. 

A resident of Illinois 33 brought an action for damages 
for false imprisonment, and Taney held that he must 
show not only want of probable cause, but also a mali- 
cious intent on the part of those who complained against 
the present plaintiff. 34 

Questions of contract appear in several of the reported 
cases. Three of these cases concern insurance. The 
owner of the brig Victoria, a British subject living at 
Nassau, 35 sued a Baltimore insurance company, which 
in defence alleged the unseaworthiness of the ship and the 
negligence of the master. Taney charged the jury that 
the vessel must have been seaworthy when insured, to 
enable the owner to recover, but that the burden of 
unseaworthiness was upon the defendant, and that, if 
a leak found at Nassau was not such but that a master 
of competent skill and judgment might have reasonably 
supposed that the ship was seaworthy, then an omission 
to repair the vessel at Nassau constituted no bar to 
recovery of insurance. 

The Barque, Margaret Huggs, sailed from Baltimore 
to Rio de Janeiro and thence to Montevideo, where she 
loaded a cargo of beef. 36 A storm drove the barque 
into Nassau, and caused most of the cargo to be spoiled 

33 Burnap v. Albert, April term, 1855. Taney's Dec, 244. 

34 Lane v. Beltzhoover, November term, 1840. Taney's Dec, 110. Taney 
held that a fieri facias in the names of two plaintiffs, after one of them is dead, 
is irregular and defective, but may be amended. 

35 Adderly v. Am. Mutual Ins. Co., November term, 1847. Taney's Dec, 
126. The jury found a verdict for the defendant. 

36 Hugg v. Augusta Ins. & Banking Co., April term, 1851. Taney's Dec, 
159. 



464 ROGER BROOKE TANEY 

or thrown overboard. The Court in the Bahamas 
decreed $2,100 as salvage, and the cargo was sold for 
about $2,700. The case went to the United States 
Supreme Court 37 and was remanded for a second trial, 
which resulted in a verdict for the plaintiffs. In that 
trial, Taney charged the jury that the plaintiff could 
recover for a total loss of freight, only if the ship could 
not have been repaired within a reasonable time, and at 
a reasonable expense and, if the expense of completing 
the voyage and delivery of the remainder of the cargo 
would have exceeded the amount of freight that would 
have been carried. 38 Insurance on goods 39 may not be 
recovered, if the plaintiff, designedly or with fraudulent 
intent, withheld from the defendant information needed, 
nor if he made a false oath ; but loss of papers, or acci- 
dent, does not bar him from recovery. 

When a banknote was taken in the usual course of 
business, bona fide and under circumstances which would 
not have excited the suspicion of a person of ordinary 
prudence and care in business that the note was lost or 
stolen, the fact that such had been the case is no valid 
defence. 40 

The Maryland Constitution of 1851 forbade usurious 
contracts, and the law of the State was that such a con- 
tract was entirely void and unenforceable. In a case 
where a defence of usury was urged, Taney held 41 that 
there can be no civil right, where there is no legal remedy 

87 7 Howard 595. 

88 He held that in Maryland the allowance of interest was a question for 
the jury. 

39 Betts v. Franklin Ins. Co. of Philadelphia, November term, 1851. 
Taney's Dec, 171. Verdict for plaintiff. 

40 City Bank of Columbia v. Farmer's and Planter's Bank of Baltimore, 
November term, 1847. Taney's Dec, 119. 

41 Dill v. Ellicott, November term, 1854. Taney's Dec, 233. 



ROGER BROOKE TANEY 465 

nor can there be a legal remedy for an illegal act. This 
incapacity to maintain an action on such a contract is 
no forfeiture, nor penalty; for there is nothing to for- 
feit where no right of action has been acquired. He 
referred to the Constitution, "containing the funda- 
mental law of the State," as "an instrument solemn and 
deliberate." 

No action was permitted by Taney to lie on a contract 
to pay for services rendered in procuring from the legis- 
lature of Virginia a right of way for the Baltimore and 
Ohio Railroad through that State, 42 as it was against the 
policy of the law to pay for a man's services as a "lobby- 
man," especially if the contract was secret and the legis- 
lature knew nothing of it. In any case, the law passed 
by the Virginia legislature was materially different from 
that which the railroad proposed to the plaintiff, and the 
passage of that particular law was a condition precedent 
to the payment. 

A contract was made between two Baltimoreans for 
the sale of a house upon Mt. Vernon Place. The con- 
tract was repudiated by the purchaser, and the owner 
sold the house for a lower price and then sued the other 
party to the contract for damages for breaking it. Taney 
refused to allow any recovery, because, when the suit 
was brought, no stipulation in the contract had yet 
been broken 43 and the plaintiff, consequently, had no 
legal demand upon which action could then be brought. 

Some Liverpool merchants had consigned to them at 
Swansea, Wales, a cargo of copper from Chile, shipped 

42 Marshall v. B. & 0. R. R., November term, 1852. Taney's Dec, 204. 

43 That is, the first payment was to be made in 18 months, and that term 
had not yet expired. Greenway v. Gaither, November term, 1851. At 
November term, 1853, in same case, Taney would not sign a bill of exceptions, 
presented two years after trial, being not satisfied that there had been error in 
instructions to the jury. Taney's Dec, 227. 



466 ROGER BROOKE TANEY 

in the brig Hope. 44 The owners of the brig resided in 
Baltimore and sent her to Montevideo with a cargo of 
lumber, and thence to Valparaiso for copper. There the 
signer of the charter party refused to load the brig, 
saying that she was too old; but the master secured a 
cargo from another source. On the return voyage, 
severe weather was met off Cape Horn, and the brig 
made Pernambuco in great distress and unable to proceed 
further. The cargo was landed, and extensive repairs 
were made, for which ship and cargo were hypothecated. 
The brig then sailed to Swansea, and, upon her arrival 
there, an admiralty court gave a decision against the 
ship and cargo to pay for these repairs, and the pro- 
ceeds of the sale did not pay the entire bill. The con- 
signers then brought suit in the United States Court at 
Baltimore against the owners to recover the net pro- 
ceeds of the cargo, after deducting the sum received from 
the underwriters and the freight. The ship was not 
insured, so that the owners had made a total loss. 
Taney stated the questions in the case as: (1) are the 
owners of the ship personally responsible to the owners 
of the cargo? and (2) by what rules of law are the rights 
of the plaintiffs and the liabilities of the defendants under 
the contract to be measured? The plaintiffs answered 
the latter question, by those of the Common Law. 
Taney replied that he saw no sound reason for applying 
to this case the principles of the Common Law as to 
Common Carriers for hire, and that the master had not 
by the Common Law, authority to make a contract for 
a cargo. When the refusal to execute the contract 
occurred at Valparaiso, the master, under the Common 
Law, should have notified the consignees of that fact, 
and awaited their orders. The principles of the Com- 

44 Naylor v. Baltzell, November term, 1841. Taney's Dec, 55. 



ROGER BROOKE TANEY 467 

mon Law do not prevail in Chile, and the contract was 
neither made in Maryland nor to be performed there. 
The master had, however, by the maritime law, the 
right to make a contract, by which the ship and her 
freight were bound. He might pledge that value, but 
no more. Otherwise the ship owner would have to 
hazard his whole fortune upon every distant voyage of 
his vessel. It can never be for the interest of the owner 
to put repairs on a vessel greater than its value, though 
it may be for the interest of the cargo. Further, the 
plaintiffs stood by and saw the cargo sold in the 
admiralty court, without appearing to defend it, or to 
require from the lender any proof of the necessity of the 
repairs. For all these reasons, Taney allowed them 
no recovery. 

To remove the bar of the statute of limitations, 45 
Taney held there must have been an express promise to 
pay, or an admission of the debt, in such terms as to 
imply that the debtor is willing to pay it. When a 
person files a list of debts under the insolvent law, there 
is no such admission of indebtedness as implies that he 
is willing to pay them all to their full extent, but rather 
that he wishes to be discharged without paying them in 
full. 

When an executor gave bond to his surety to pay him 
half of his commissions, in consideration of his consenting 
to act as surety, he executed a valid instrument. 46 In 
an action on such a bond, a premium paid a new surety, 
required by the Orphans Court, is not to be allowed as 
a set off. An agreement between the executor and 
surety to waive commissions during the life of the 

45 Ga. Ins. & Trust Co. v. Ellicott, November term, 1849. Taney's Dec, 
130. 

« Culbertson v. Stallinger, April term, 1840. Taney's Dec, 75. 



468 ROGER BROOKE TANEY 

testator's widow, is not a condition annexed to the bond, 
and, not being under seal, cannot operate as a release 
or defeasance. Such an agreement would be enforced 
in a court of equity, but not at law. Equity would also 
consider whether the insolvency of the first surety and 
the requirements of an additional surety permitted the 
insolvent to continue entitled to any share of the com- 
missions which accrued, after his name had ceased to be 
available as surety. The executor had a right to em- 
ploy counsel and to pay him reasonable fees and set them 
off against the surety's share of the commissions. 

A man was appointed, by the captain of a naval 
vessel, as acting purser and died without confirmation 
of his appointment. His administrator sued the United 
States for commissions. 47 The allowance was not given 
by act of Congress, but by the Naval Regulations. As 
the plaintiff's salary was fixed by the act of 1814, Taney 
refused to allow the commissions, saying that the regula- 
tions could not increase the renumeration fixed by law. 
The Navy Department's construction of a law should 
be given respect, but "cannot be allowed to alter the 
law, nor to control its construction in a Court of Justice." 
"This usage," 48 Taney added, "is not to expound but to 
repeal the Act of Congress." 

One copyright case 49 reported for the infringement of 
the copyright of the song entitled: "The Old Arm 
Chair." To enable the jury to determine whether the 
tunes were similar or not, Taney permitted Mr. John 
Cole, an old professional singer, to sing them both in 
Court, and, as a bystander remembered the scene, "the 

47 Goldsborough v. U. S., April term, 1840. Taney's Dec, 80. 

48 The District Court should have allowed nothing, but granted the adminis- 
trator one per centum and, as the United States had acquiesced in the decree, 
Taney did not disturb it. 

49 Reed v. Carusi, November term, 1845. Taney's Dec, 72. Tvler, p. 312. 



ROGER BROOKE TANEY 469 

Chief Justice, with that power peculiarly his own, of 
restraining almost by a glance, the slightest breach of 
decorum in his Court, overawed and repressed every 
demonstration of disrespect by the placid and dignified 
attention which he bestowed throughout upon Mr. 
Cole's musical efforts." 

Two patent cases at law and two in equity, are found 50 
An interesting equity suit was tried at the April Term of 
1841. 61 An American citizen, domiciled in Buenos 
Ayres, shipped a cargo to Gibraltar on an American 
schooner, commanded by an American. The papers 
concerning the cargo were made out in the name of the 
master, to protect it from Brazilian cruisers, as Buenos 
Ayres and Brazil were at war. The vessel was captured 
and lost, together with its cargo. The master then 
prosecuted a claim for the cargo, as his own, against 
Brazil, and agreed with the owner to pay over the 
amount secured after deducting the charges. Before 
the decision was made in Brazil, the master died, and 
Neale, a Baltimorean, who took out letters of adminis- 
tration upon his estate, successfully prosecuted the claim. 
The amount received was brought into court as the 
master's assets. Duffy, the owner, then sued Neale for 
the money. Neale died before the trial, and the jury 

60 In law: Knight v. B. & O. R. R., November term, 1840. Taney's Dec, 
106. A judgment of $5,000 was recovered for infringement of a patent for end 
bearings, and Larabee v. Colton, April term 1851. Taney's Decisions 180, 
infringement of a patent shower bath. 

In equity: Wilson v. Turner, April term, 1845. Taney's Dec, 278, con- 
cerning an assignment for the time of the renewal of the patent for Wood- 
worth's planing machine (a decision affirmed in 4 How. 712)— and Crosby vs. 
Lapouraille, November term, 1854. Taney's Dec, 374, in which Taney held 
that a combination in machinery is patentable, if the combination is new, 
although the elements are old, provided the combination is invented by the 
patentee and is not a mere effort of ordinary mechanical skill. 

61 Duffy v. Neale's Administrator. Taney's Dec, 271. 



470 ROGER BROOKE TANEY 

gave a verdict against his estate. There were no assets, 
and Duffy tried to get funds from Neale's administrator. 
Taney held that the original right merged in the judgment 
obtained at law, and that, therefore, Duffy could not 
charge Neale's administrator. 

In a later suit concerning the estate, 52 of a Charles 
County man, who had left a bequest of $1000 for the 
endowment of "the Society for the education of pious 
young men for the ministry of the Protestant Episcopal 
Church," Taney held the bequest was invalid, because 
of a decision in Maryland courts against the validity 53 
of such bequests to unincorporated and voluntary asso- 
ciations of individuals. The famous Girard will case was 
not to be considered as a precedent on the other side, for 
its decision was founded on the common law uf Pennsyl- 
vania, and the Circuit Court of the United States must 
administer the law of the state in which it sits, and must 
reaffirm the decisions of the highest judicial tribunals of 
that State. In Equity, a Federal Court is governed by 
English Chancery law as to the remedy and as to its 
form; but not as to the right of the complainant. 54 

Taney had occasion to consider the laws against usury 
and gambling in the case of Thomas vs. Watson 55 and 
held that 56 "while the laws against usury are intended 
to protect the necessitous against the oppression of the 
money lender, and against hard and ruinous contracts, 
forced upon them by their wants, the laws against 
gaming are founded upon a policy equally sound and 
clear, and are intended to discountenance a vice in- 

52 Meade v. Beale, November term, 1850. Taney's Dec, 339. 

53 Dashiell v. Atty.-Gen., 5 Harris & Johnson, 392. 

M A very able brief by Henry Winter Davis in behalf of Bishop Meade, is 
printed, together with Taney's Decision. 

55 April term, 1846. Taney's Dec, 297. 

56 Page 305. 



ROGER BROOKE TANEY 471 

jurious to society and often most ruinous to the indi- 
vidual." A man had confessed judgment on two promis- 
sory notes, one on an usurious and one on a gambling 
consideration. Then he became insolvent, and his trustee, 
riling a bill in equity for relief from an execution upon the 
judgment, called the creditor to state the true considera- 
tion of the notes. On a demurrer, Taney held that, as the 
defendant had not objected to answer, on the ground that 
he would thereby be subject to penalty of forfeiture, 
he could not avail himself of this defence, nor would it 
have been a valid defence in any case; since, merely 
making an usurious contract did not subject the 
lender to a forfeiture, and he was not asked to state the 
circumstances under which the money was won on 
the gaming debt, but inquiry was merely as to whether 
the consideration was a gaming debt. There were 
many ways in which he might have won the money, 
without subjecting himself to a penalty. An affirmative 
answer would undoubtedly prevent him from recovering 
the money, but that loss was not a penalty, or forfeiture, 
within the meaning of the law. The principle on which 
a court will grant relief after the voluntary payment of 
money must also entitle one to relief after a voluntary 
confession of judgment, and an omission by the debtor 
to defend himself is no bar to the relief asked by the 
trustee, for these questions were not decided in the suit 
at law. 57 

In the case of Lowry vs. Commercial and Farmer's 
Bank of Baltimore 58 Taney properly held the bank liable 
for negligence, in not preventing a fraudulent transfer 

57 The Maryland Law of 1845 was too late to be appealed to, in its abro- 
gation of the penalties of the law of 1704 as to usury and permission to the 
lender to recover the sum loaned with legal interest. 

"April term, 1848. Taney's Dec, 310. 



472 ROGER BROOKE TANEY 

of its stock. In Wartman vs. Wartman 59 he considered 
an application to discharge a man from an attachment 
for contempt of court. The defendant's father had 
devised him money in trust for another son and his 
children. This brother's only child brought suit for the 
money and the defendant denied the parenthood of the 
child and, while the suit was pending, distributed the 
fund, so as "to evade and defeat any order the court 
might make for the security of the fund." He had 
failed to bring the money into court and Taney refused 
to permit him to be heard, till he purged himself from 
contempt. An attachment had been issued, and the 
defendant was in jail. He pleaded that he had no notice. 
Taney denied this, and said that contempt does not 
depend upon one's intent, but upon the act done. From 
his conduct, the conclusion was irresistible that he acted 
so as to show contempt for the court and defraud the 
complainant of any possible right the court's decision 
might give him. By filing a schedule of his property 
with a trustee, showing that he had not the ability to 
pay the sum, or by paying the money into court, he 
might be released, but upon no other condition. 

Baltimore was a great commercial emporium, and the 
United States Courts had an exclusive admiralty juris- 
diction, so that we are not surprised to find a number of 
opinions upon important Admiralty Decisions. Two 
suits arose out of ship building. 60 In one of these suits, 
Culley had contracted with the Federal Government to 
build the brig Lawrence for the Navy, and Donohue was 
a sub-contractor, who did extra work, by direction of the 
government inspector. To charge Culley for this work, 
Donohue Tnust show, Taney decided, not only that 

69 April term, 1853. Taney's Dec, 363. 

60 Donohue v. Culley, April term, 1844. Taney's Dec, 468. 



ROGER BROOKE TANEY 473 

the work was not embraced in the original specifi- 
cations given him by Culley, but also that it was 
embraced in the specifications given Culley by the Naval 
Department. 

The other case was a libel to recover for labor and 
materials furnished the ship Scotia* 1 Leslie had en- 
gaged Smith to build the vessel. He was a vessel- 
builder, but had never built a full rigged ship before, 
and agreed to build it below the usual price, not expect- 
ing to make any money, but hoping to save himself and 
to obtain the reputation of a first rate ship-builder. 
Leslie promised, verbally, to pay half a dollar a ton 
more than the contract price, if the ship were well built. 
Smith had two sureties, one of whom was named Glass. 
The other one acted at Leslie's request that he exercise 
his influence on Smith to urge him on (under an express 
agreement that he should not be held liable). After the 
contract was signed, Leslie changed the plan of the ship 
with Smith's consent, but without consulting the sure- 
ties, thereby making the construction more expensive. 
Leslie's confidence in Smith was soon shaken, and, on 
the very day on which the keel was laid, when Smith 
called on him for $1000, he took a receipt and an assign- 
ment of all rights to the ship, which assignment was kept 
secret until Smith stopped payment. The ship was 
launched on January 1, and about that time one of 
Smith's notes fell due. Leslie refused to make further 
advances, and Smith became insolvent and could not 
go on with the work. Those who worked on the ship, 
or furnished materials for her, applied to Leslie, who 
repeatedly said that all just bills would be paid. Glass 
had been employed by Smith to do outside joiner's 
work, and, in January, certain bills receivable were 

61 Leslie v. Glass, April term, 1840. Taney's Dec, 422. 



474 ROGER BROOKE TANEY 

transferred by Smith to him. Since the completion of 
the vessel, Leslie had refused to pay Glass and others, 
on the ground that they gave Smith credit. 

Taney held the scales of justice even, and said that, 
in general, the person for whom the vessel is built is not 
liable for debts contracted by a shipwright, and, when 
he pays the money due according to the contract, he is 
entitled to a delivery of the vessel, free, and discharged 
from any claim. Ordinarily, also, general declarations 
made by the person for whom the vessel is built, after 
the work has been done or the materials furnished, that 
he will pay therefor, will not bind him, even if the vessel 
is worth more than the contract and the shipwright is in- 
solvent, for the promises are without consideration, and, 
consequently, cannot be enforced. In this case, how- 
ever, if the assignment had become known to the work- 
men, they would have lost confidence in Smith, and the 
assignment was kept secret to preserve his credit and 
enable him to go on with the ship. Smith gained a 
false credit, and, if Leslie intended thereby to obtain, 
on Smith's credit, labor and materials necessary to 
build the ship, without becoming personally respon- 
sible, the design was one which a court of justice cannot 
sanction. It was hardly just to Leslie to decide the 
matter thus, however, for when he took the assignment, 
he supposed it would be for the advantage of both of 
them to sustain Smith's credit, by concealing the assign- 
ment, and that Smith would make a profit from building 
the ship. The ship had hardly been finished, when the 
libel was filed and Taney was persuaded that the pres- 
ent defence was "owing more to irritation caused by 
these circumstances than to any deliberate design to 
break the promises he had made, or to be unjust to the 
creditors." After the assignment, the ship became 



ROGER BROOKE TANEY 475 

Leslie's property and so his promises were not without 
consideration, and he must pay the bills. 62 

A number of cases were concerned with repairs made 
to vessels. They illustrate the trade of the times. 
Taney rebuked a fraudulent transfer of a schooner in 
Port au Prince, which was intended to cheat one who had 
advanced on it money for repairs. 63 He decided that a 
claim for copper furnished a vessel sailing from New 
York to Rio de Janeiro was not proven, when the debt 
was secured by a note of the consignees of the brig. 64 

In a third case, in which a vessel formerly owned by 
a Baltimorean had been sold to residents of New York, 
the decision was that the burden of proof lay upon the 
new owners, to show that the repairs, which were made 
after the sale, were not done upon the credit of the mas- 
ter, in which case there would be no lien upon the brig. 65 

The schooner Light was owned by two persons, but 
was registered in the name of one of them only, and the 
libellants, ship-carpenters, who did work on the vessel, 
had no knowledge of the other's interest, he yet was held 
liable also for the debt to them. 66 

The schooner El Caballero sailed from Savannah to 
Havana with a cargo of rice. A bill for repairs on the 
vessel was drawn upon the owner in Baltimore. 67 The 
consignee at Havana gave the master an advance of 
money to take up the bill which had been protested and 

62 As Leslie had suffered some hardship, in paying for the ship more than 
for other similar vessels, and Glass had suffered accounts to accumulate with- 
out asking Leslie about them, no costs were allowed. 

» Herwig v. Oakley, April term, 1838. Taney's Dec, 389. 

54 Phelps, Dodge and Co. v. Brig Camilla, April term, 1838. Taney's Dec, 
400. 

66 Jones v. Brig Ratler, November term, 1841. Taney's Dec, 456. 
66 Leef v. Gardiner, November term, 1841. Taney's Dec, 461. 

67 Thomas v. Gittings, April term, 1844. Taney's Dec, 472. 



476 ROGER BROOKE TANEY 

paid other bills, taking a bottomry bond on the vessel 
from the master. When an action was brought by Git- 
tings, the consignee, the District Court decided for him 
and, on appeal, Taney decided that a bottomry bond was 
allowable in this case, in the interest of both owner and 
master. 

Supplies furnished at the home port create no lien 
upon a vessel 68 and the port where the vessel is enrolled 
and licensed is the home port, without regard to the 
citizenship of the owner. A vessel whose voyages are 
confined within the limits of the District where she is 
enrolled, for example a Baltimore boat which goes not 
outside of the Chesapeake Bay, though she may connect 
with other vessels, is not engaged in foreign voyages, 
so that the furnishing of necessities for her voyages is a 
maritime contract, or has connection with commerce on 
the high seas. 

A promissory note, 69 given for articles furnished 
toward the repair of a vessel, will not bar an admiralty 
suit on the original cause of the action, when the libel- 
lant produces the note in court, and surrenders it. 70 

When a contract for repairs or supplies to a merchant 
ship, the steamboat Susquehanna, was made, the ques- 
tion as to whom credit was given, or who is liable for 
payment, is an admiralty one. 71 A contract to form a 
partnership in order to purchase a vessel is not a mari- 
time one. If the contracts are so blended that the 
court cannot adjudicate one without the other, the 
complainant must resort to law, or equity, as the case 



68 Pickell v. Steamer Loper, April term, 1851. Taney's Dec, 500. 

69 McKim v. Kelsey, April term, 1851. Taney's Dec, 502. 

70 In the same case, Taney stated that consent of parties could not confer 
jurisdiction upon the court. 

71 Turner v. Beacham, April term, 1858. Taney's Dec, 583. 



ROGER BROOKE TANEY 477 

may require, and the Admiralty Court cannot take 
jurisdiction. 

In a suit in personam to recover for work done for the 
schooner Hamilton,' 72 Taney took the position that, 
although a promissory note was given for the debt and 
there was a common law remedy in consequence, yet 
there is not necessarily a bar to an Admiralty suit, for 
sometimes a man may elect his remedy. Whether the 
taking a note for a maritime contract constituted a bar 
to the admiralty proceeding or not, depended upon the 
effect which the note had upon the original contract. 
If it discharged the contract, there was an end of the 
admiralty jurisdiction. A surrender of the note, as was 
offered, could not renew the original debt. In Mary- 
land, however, a due bill did not discharge an original 
contract. The vessel in question was a small one of 
27 tons, used in transporting farm produce from the 
respondent's farms to Baltimore City. The manner in 
which the vessel is employed cannot affect the admiralty 
jurisdiction, which "depends upon the vessel's charac- 
ter." If the repairs fitted her for the navigation of the 
sea, the contract was maritime. "It did not rest with 
the owner to confer or take away the admiralty jurisdic- 
tion, at his pleasure, by the mode, or trade, in which 
he afterwards employed her." 73 

Several cases dealt with claims for wages. 74 On a 
voyage to the West Indies, the captain broke a water 
bucket over a seaman's head. On his return to Balti- 

"Ruppert v. Robinson, April term, 1851. Taney's Dec, 492. 

73 Taney's avoidance of technicalities is shown by his refusing to allow 
an amendment of the respondent, the only effect of which would be to drive 
the libellant to another forum to recover a claim admitted to be due. 

74 In Agnew v. Donnan, April term, 1838, Taney's Dec, 386, Taney held 
that the Circuit Court had no jurisdiction to consider an appeal, when the 
amount claimed was under $50. 



478 ROGER BROOKE TANEY 

more, the sailor requested his discharge. 75 The master 
could have refused, but granted it, and made the sailor 
sign a receipt for twenty-five cents, "for assault and 
battery, in full for all dues and demands." He then 
brought suit. Taney considered the amount grossly 
inadequate and to have been accepted when the sailor 
was under undue influence. The court allowed thirty 
dollars, without costs. 76 

The schooner Baltimore, bound from its home port to 
Bordeaux, and owned by Karthaus, an American citizen, 
was captured by a British cruiser in the war of 1812 
within a mile of the coast of Spain, with which nation 
the United States were at peace. 77 The vessel was car- 
ried into a Spanish port and thence taken to Great 
Britain. The owner put in a claim for damages under 
the Florida Treaty of 1819 with Spain, on the ground 
that Spain had not fulfilled her obligations as a neutral, 
and, therefore, was bound to make restitution. He was 
allowed, for vessel and cargo and outward freight, an 
amount which fell far short of what he lost. The mate, 
Ardrey, was detained as a prisoner of war, until he was 
exchanged, and he returned to the United States, more 
than a year from the time he left, having earned no 
wages after leaving the vessel. He sued Karthaus to 
recover wages up to the date of his return to the United 
States. The decision was that wages were recoverable 
only to the day of the ship's condemnation, but that no 
deduction should be made from them, because of an in- 
sufficient sum received by the owner. "Freight is the 

76 Mitchell v. Pratt, April term, 1841. Taney's Dec, 441. 

76 The case of the Clerk's fees, April term, 1841, Taney's Dec, 453, was one 
in which reasonable fees for a seizure on land for a breach of revenue laws 
were held to be the same as for seizure of goods on rivers. 

77 Ardrey v. Karthaus, April term, 1836. Taney's Dec, 379. 



ROGER BROOKE TANEY 479 

mother of wages," except against underwriters — the 
public enemy forms no exception. "A neutral power 78 
is not at liberty to decide according to her own conven- 
ience, whether she will perform her neutral obligations 
or not; she is bound to perform them, and, if she fails to 
do so, she becomes herself liable for the injury which she 
ought to have prevented." The Spanish had been dere- 
lict and the seamen had well grounded spes recuperandi 
which was not lost, until condemnation of the ship. The 
"freight and the ship itself, to the last plank, are liable 
for wages. 79 The claim of the seamen is a preferred one 
to be paid, without any deduction for the losses or 
expenses of the owners." The amount recovered ex- 
ceeded the claim for wages, therefore, the libellant was 
entitled to them in full. 

Concerning freight, Taney decided that a contract, 
created by signing a bill of lading for the carriage of 
goods from one port to another, is a maritime one and 
within the admiralty jurisdiction. 80 The owners of the 
ship Charles, in 1849, advertised that she would sail for 
San Francisco, but, being unable to secure a full cargo, 
the voyage was given up, and arrangements made with the 
ship Andalusia, to take over the freight. One of the ship- 
pers refused to accede to this arrangement, but insisted 
that the goods be carried in the Charles, or purchased 
from him at the invoice price, including expenses. The 
ship owners declined to do either thing, butdeposited the 
goods in a warehouse, subject to the shipper's orders. 
The district court gave $100 and costs to the shipper, 
when a libel was filed and the libellants appealed from 
the decision. Taney held that it was clear that the ship 
was bound to carry the goods which had been accepted 

78 Page 383. 

79 Page 385. 

80 Harrison v. Stewart, April term, 1851. Taney's Dec, 485. 



480 ROGER BROOKE TANEY 

as freight, unless prevented by some uncontrollable 
event, and that the ship owners were liable to damages 
for breach of contract, since they had refused to per- 
form the voyage without legal justification. The An- 
dalusia was a ship equal in character and qualities to the 
Charles, and so there existed no just reason for awarding 
damages to the amount of the value of the goods, which 
were not lost, nor even detained without the owner's 
consent. The true measure of damages was the dif- 
ference between the value of the goods at Baltimore and 
in San Francisco ; for that was the loss occasioned by the 
breach of the contract. If the Charles had sailed in 
February, as advertised, and gone around Cape Horn, 
she could not have reached San Francisco before June. 
The testimony showed that the market there was then 
in a state of great depression and the goods might even 
have been sold at a loss, so that the decision of the 
District Court was affirmed. 

Some Liverpool merchants filed a libel against the 
owner of the ship A. Cheeseborough, 81 on which wheat was 
shipped from Baltimore, alleging that a large part of the 
cargo had been lost on account of negligence. The de- 
fence was successfully made that, after a few days sail, 
a storm arose, and the ship sprang a leak, wheat came up 
with water in the pumps, and the ship finally went to 
the island of St. Thomas for repairs. Surveys were 
made there and showed that the cargo must be landed, 
some thrown away, some reladen, and some sold, as the 
cargo could not be repacked so closely. It had been 
loaded in bulk in Baltimore, and reloaded in bags in 
St. Thomas, and some tobacco which was also in the 
cargo could not be repacked so tightly. The libellants 
asserted that the disaster was due, not to the storm, but 

81 Hooper v. Rathbone, April term, 1853. Taney's Dec, 519. 



ROGER BROOKE TANEY 481 

to straining the ship through carrying too much sail, 
or to a defect in construction of the bin, or in the arrange- 
ment of the pumps. Taney did not agree with these 
contentions, and, saying that the conduct of the master 
was prudent, dismissed the libel with costs. 

A vessel 82 set sail from New York to the West Indies, 
expecting afterwards to go to Franklin, Louisiana, and 
thence to Baltimore. The voyage ought usually to have 
been made in two months, but actually took seven, for 
the vessel was injured by a storm and was forced to 
refit at Nassau, so that she arrived late for the sugar 
season in Louisiana. After being notified that no cargo 
would be given him on account of that detention, the 
master of the vessel did not wait, but sailed for Balti- 
more. Claim was then made by the owners of the brig 
for damages, and Taney granted their suit, holding that 
they were entitled to recover at Common Law, the full 
amount of freight that they would have earned, if a 
cargo had been given them; but that, as Admiralty is 
equitable, the omission to give notice of the disasterwhich 
delayed the vessel so long beyond her time, evidently 
caused the inability to provide the cargo and must 
exercise a serious influence in estimating damages and 
throw upon the libellants a part of the loss. The master 
was to have part of the profits of the voyage, and, there- 
fore, was an incompetent witness as to the necessity of 
the delay, nor did the fact that he had been disabled and 
employed a substitute make him competent, since the 
substitute had no share in the profits. The contract 
was a written one, and a custom to make a voyage for 
the sugar season could not be allowed to affect the legal 
construction of such a contract. 83 

82 Hall v. Hurlbut, April term, 1858. Taney's Dec, 589. 

83 Taney differed from the English decision of Avery v. Bowden in 6 Ellis 
and Bl. 95, and refused to follow it. 



482 ROGER BROOKE TANEY 

The agent of the British barque Invincible entered 
into a charter party with a ship master to go from City 
Point, on the James River, with a cargo of flour to Rio 
de Janeiro and return with coffee to Baltimore. 84 
Anderson shipped part of the flour in the cargo and 
Gittings advanced him money to enable him to do so. 
The voyage proved unfortunate, and the net proceeds 
of the flour did not pay Gittings' bill. Anderson failed, 
and owed the ship owners a large amount for freight. 
The ship master refused to deliver coffee put on board by 
Anderson's agents in Brazil, until the freight should be 
paid. There was no question of bad faith, but merely of 
the rights of the respective parties. If the coffee were 
the property of Anderson, and Gittings' interest was only 
a lien, the coffee would be liable to the whole amount 
of freight due as a prior lien, Taney held, but Git- 
tings' interest was more than a lien, it was his property. 
Anderson had no right to possession, nor control of the 
cargo, unless a surplus remained, after satisfying the 
amount, to secure which the flour had been made deliver- 
able to Gittings' order. The coffee had been pur- 
chased for Gittings and shipped to him, out of the pro- 
ceeds of the flour. The lien of the ship owners upon 
the return cargo did not depend upon the funds with 
which it was purchased. Gittings was a mortgagee of 
the flour; but, to theextent of his interest, his rights stood 
on the same ground as if he had been a purchaser. If 
the coffee at Baltimore was worth more than the amount 
for which Anderson had assigned to Gittings, the sur- 
plus would be liable for the full freight, but there was 
no surplus, and, consequently, the shipment of coffee was 

84 Webb v. Anderson, April term, 1858. Taney's Dec, 504. The libel 
was filed by John Glenn, and he being appointed District Judge, by an especial 
act of Congress, the trial of the cause was assigned to Taney. 



ROGER BROOKE TANEY 483 

liable only to the freight from Rio de Janeiro. The char- 
ter party did not contain the usual clause, by which the 
owner binds the cargo to the performance of all cove- 
nants in the charter party, and, on the general principles 
of the law, the merchandise is bound for the transpor- 
tation only and its liability can not be extended further, 
except by stipulations in the charter party. 

The schooner Anne, and another vessel were built at 
Baltimore, 85 for a Portuguese merchant, residing in 
Cuba, under the superintendence of two men sent from 
Havana by him, who should command the schooners 
when they were finished. He placed a sum of 
money in the hands of his factor to pay for the vessels. 
When the Anne was ready for sea, she was registered as 
the factor's property. She was immediately seized by 
the collector of the port, under the act of 1818, as fitted 
out for the slave trade. It was proved at the trial that 
she was so fitted out with the factor's knowledge, and 
Taney held that, as he made out the contracts as factor, 
he must be so regarded, and not as owner. To work a 
forfeiture, a criminal intent must exist in the mind of 
the party lawfully entitled to direct the employment of 
the vessel. If the owner placed the vessel under a 
factor, who equipped her with an unlawful intent, the 
vessel is liable to forfeiture, so the claim of the Federal 
government was sustained. 

The act of Congress of 1838 required steamboats to 
have their boilers and machinery examined every six 
months. 86 The steamer Jewess carried passengers and 
goods between Baltimore and Norfolk without such 
examination from December 8, 1838, until June 15, 1839, 
and was then seized by federal officials. The district 

85 Strohm v. U. S., April term, 1840. Taney's Dec, 413. 

86 Va. & Md. Steam Nav. Co. v. U. S., April term, 1840. Taney's Dec, 418. 



484 ROGER BROOKE TANEY 

court awarded a fine of $50 and decreed a sale of the 
boat to pay the fine. Taney, on appeal, upheld the 
decision that the law had been broken, since the examina- 
tions must not be more than six months apart, but held 
that the court below had erred, in putting the penalty 
against the owners, for that must be done by indictment 
in a criminal court, and not by suit in Admiralty. 
Showing his usual disregard of undue technicality, he 
proceeded to give such a decree as ought to have been 
given, and ordered the vessel sold and the proceeds 
distributed. 

The barque Anna, from Bremen to Baltimore, took on 
board 235 passengers above six years old, of whom 231 
were in the steerage. Twelve of the passengers died 87 
on the voyage, and, when the barque came to Baltimore, 
the federal officials seized her, on the ground that she 
violated the statute concerning the transport of pas- 
sengers. 88 Taney stated that it mattered not whether 
an excessive number had been brought into the United 
States, the law was violated if too many passengers 
were taken on board at the beginning of the voyage. 
The act was passed to prevent the evils of overcrowding 
and the court must interpret it in accordance with its 
spirit. He held that the facts showed that there were 
not too many passengers on board, and so decreed no 
forfeiture. 

Taney had a particular interest in collisions, and one 
of his most important decisions, that of the Genesee 
Chief, arose out of a collision. Four decisions in such 
cases are reported among his Circuit Court opinions. 
The first of these concerned a collision in the Chesapeake 

87 Eleven persons died of cholera in the two months passage. 

88 U. S. v. Barque Anna, November term, 1854. Taney's Dec, 549. The 
Court held that the act of 1817 had been repealed by the act of 1848. 



ROGER BROOKE TANEY 485 

Bay, between the steamboats Fredericksburg and Boston.™ 
As always in such cases, there was a conflict in the testi- 
mony, not from a desire to misrepresent, but from dif- 
ferent points of view, different times at which the atten- 
tion was called to danger, different degrees of coolness, 
of knowledge and of prejudice. Each steamboat was 
pulling a tow of canal boats, when the Boston ran into the 
Fredericksburg. Taney held that the former vessel was 
to blame, because she steered wrongly and her signal light 
was nearly out. The ''omission of a known legal duty," 
Taney said, "is such strong evidence of negligence and 
carelessness that, in every collision under such circum- 
stances," the offending vessel must be held at fault, 
unless there be "clear and indisputable evidence" to the 
contrary, As to the amount of damage, there was no 
equal contrariety of evidence. The witnesses were 
"skilful men and respectable citizens of undoubted 
integrity," but, when all were trustworthy, Taney was 
guided, not by their number, but rather by their know- 
ledge and by the time when they examined the boat. 
The case came before him on appeal and he said that the 
District Court's decision should be regarded as correct, 
unless it was shown to be erroneous. "Only the firmest 
and clearest conviction that it had fallen into error 
would justify" a reversal, especially when the case was 
carefully considered below. 

The brig Mary T. Wilder lay at anchor in the Chesa- 
peake, in the ship channel, five miles below the Patapsco 
River, without lookout or light. The night was a moonlit 
one, but the moon went down a little before dawn, and 
just at that time, the barque Phantom collided with the 
brig. Taney held that the brig was guilty of gross 
negligence and that the want of a light on the Phantom 

89 Taylor v. Harwood, November term, 1845. Taney's Dec, 437. 



486 ROGER BROOKE TANEY 

did not constitute contributory negligence, since there 
was no one on board the brig awake to see it. 90 

The brig Laurel lay at anchor below Hampton Roads 
in the public channel five miles from land, on a dark 
night. She had proper signal lights, and so had a valid 
claim for damages, when the schooner Adelaide ran 
into her at 5 a.m., on a December morning, without 
seeing the lights until within 50 yards. The schooner 
showed unskilfulness in measures taken, when she be- 
came aware of the presence of the brig. 91 

Taney gave severe reprobation to a schooner loaded 
with oysters and bound from the Patuxent River for 
Philadelphia, when she ran into the steamer Louisiana, 
in the Chesapeake, near the mouth of the Rappahannock 
River 92 on a moonlight night. There was an incompe- 
tent lookout on the schooner. The helmsman was 
hardly better, and did not mind the lookout. The mate 
of the Louisiana was competent and he had a good 
helmsman, but the latter was a colored man and so, 
under the Maryland law of the period, could not be 
examined as a witness. If the schooner had been prop- 
erly handled, the boats would have passed in safety. 93 

One more case remains to be considered — a peculiar 
one. 94 Four rafts of lumber, which had floated down 
the Susquehanna River and which belonged to Jacob 
Tome, were anchored at Port Deposit, below tide- 



90 Cohen v. Brig Mary T. Wilder. November term, 1856. Taney's Dec, 
567. 

91 Green v. Schooner Adelaide, November term, 1857. Taney's Dec, 575. 

92 Haney v. Steamer Louisiana, November term, 1858. Taney's Dec, 602. 

93 Taney distinguished the case from the Genesee Chief, since the schooner 
here was entirely at fault. A steamboat carrying the mails, he added, has no 
exemption from the regular rules. 

94 Tome v. Four Cribs of Lumber, November term, 1853. Taney's Dec, 
533. 



ROGER BROOKE TANEY 487 

water. They were driven from their anchorage by high 
winds and high water. The rafts were not broken up, 
but were rescued while floating, and brought to the 
opposite shore of the river. Taney held that no salvage 
was due and that the rescuer had no lien on the lumber, 
nor any right to retain it from the owner. His remedy 
against the owner was an action at law to recover the 
value of his services. Tome had sent men to carry away 
the lumber, when a man who lived on the Harford 
County side came out with others in a boat. Bearing 
a gun, he threatened to shoot Tome's men and frightened 
them away. Tome asked the Admiralty Court for the 
lumber and for damages, as he could not use it to fulfil a 
contract. Taney said the breaking away of the rafts 
was one of the usual accidents of trade, and that, if the 
owners chose to expose their property to this risk, no 
one can acquire a right in the lumber by interfering with 
it without their authority. No one was on the raft, but 
that fact did not make it a derelict, for usage did not 
require anyone to be there. The loss was occasioned 
rather by floods from the land, than by perils of the sea. 
These rafts are not "vehicles intended for navigation" 
of the sea, nor instruments of commerce or navigation, 
but are mere piles of lumber. Taney held that Tome 
ought to have sued out a writ of replevin in a court of 
law; but, with his usual reasonableness, stated that it 
would be unjust to deprive him of the possession, which 
the decision of the District Court had given him, 
"merely to subject him to the necessity of recovering it 
again in a new suit." As he mistakenly brought the 
controversy into the Court of Admiralty, however, he 
was given no costs. 



CHAPTER XV 

The Civil War (1861-1864) 

The National election of 1860, at which Lincoln was 
chosen President, was almost immediately followed by 
the secession of South Carolina, and the Gulf States soon 
imitated her example. The " irrepressible conflict" had 
come to a point where the decision must be made as to 
whether the union of States should continue to exist 
one and indivisible, or should be riven into two con- 
federacies. The attempt to save the Union with slavery, 
which Taney had made in the Dred Scott case, had for- 
ever failed. The attempt of the Free State men to 
destroy slavery was far as yet from success. Most men 
in the North realized, as did Lincoln, that the first duty 
of the time was to lend every effort toward the preserva- 
tion of the National Government and not to permit the 
country to be divided into States, "discordant and bellig- 
erent." To many, the question of duty was a doubtful 
one. Allegiance could be given to one power only and, 
when a State voted to secede, a man of high integrity 
might hesitate, if he had professed fealty to that State. 
In Virginia, George H. Thomas and Robert E. Lee were 
both men of great conscientiousness, but their decisions 
as to this point were diametrically opposite. In Mary- 
land, a border State, where the ties of friendship and 
kinship were close with Pennsylvania on the one side 
and with Virginia on the other, the two conflicting forces 
strove; on the one hand to carry the State over to the 
Confederacy, and on the other to retain her within the 
Union. The year of the Presidential canvass opened 
with five justices from the Slave States upon the Su- 

488 



ROGER BROOKE TANEY 489 

preme Court Bench. Of these Daniel of Virginia died 
during 1860 and Campbell of Alabama went with his 
State when it seceded, albeit somewhat unwillingly. 1 
Catron of Tennessee and Wayne of Georgia, remained 
loyal to the Union in spite of the secession of their States. 
Wayne was the senior of the Associate Justices, and, 
therefore, he presided over the Court during Taney's 
illness and after his death. Of the loyalty of Taney 
himself, there never seems to have been a question at 
the time. He took no open part in the discussion that 
raged about him, but his silent influence was thrown on 
the side of the Union. 2 Campbell, wrote at Fort Pulaski 
on July 10, 1865, that Taney, in his last interview 
with Campbell "acquiesced in the propriety" of the 
latter's resignation. On April 29, 1861, Campbell, 
informing Taney that he had resigned his judgeship, 
expressed in strong language "the profound impression 
that your eminent qualities as a magistrate and jurist 
have made upon me. I shall never forget the upright- 
ness, fidelity, learning, thought, and labor that have been 
brought by you to the consideration of the judgments 
of the court, or the urbanity, gentleness, kindness, and 
tolerance that have distinguished your intercourse with 
the members of the court and bar. From your hands I 
have received all that I could have desired and in leaving 
the court, I carry with me feelings of mingled reverence, 
affection and gratitude." 

1 Southern Historical Society Papers. 52 Am. Law Rev. 162, Article by 
Judge H. G. Connor of North Carolina. See also Connor's Life of Campbell, 
pp. 140 and 149. 

2 On December 4, 1860, Senator Saulsbury of Delaware proposed the 
appointment of a commission to be composed of ex-President Millard Fillmore, 
ex-President Pierce, Chief Justice Taney, George M. Dallas, Edward Everett, 
Thomas Ewing, Reverdy Johnson, Horace Binney, J. J. Crittenden, and 
George C. Pugh, to confer with a like number of commissioners from the Con- 
federate States, in the endeavor to restore peace and preserve the Union. 
(Moore's Rebellion Record, Vol. II, Doc. 103.) 



490 ROGER BROOKE TANEY 

On March 4, Lincoln took the oath of office, admin- 
istered to him by Taney. He had now sworn in seven 
Presidents, a record which has not been equalled. 3 The 
bent and fragile figure of the aged jurist, clad in his 
black silk gown, standing beside the tall gaunt states- 
man, made a striking picture, which must have led 
bystanders to feel that the Chief Justice would hardly 
swear in another President, and, considering the condi- 
tion of the country, to wonder whether another Presi- 
dent would ever present himself to take the oath of 
office. 

A little more than a month after Lincoln's inaugura- 
tion, Fort Sumter fell and the the Sixth Massachusetts 
Regiment forced its way through the streets of Balti- 
more, on the nineteenth of April, struggling against 
a mob. For a time, the control of the city was in 
doubt, until General Benjamin F. Butler, with Union 
forces, seized Federal Hill, which commanded the centre 
of Baltimore, on the night of the thirteenth of May. 
All was excitement and the Union leaders felt that the 
Southern sympathizers must be sternly repressed. 
Lincoln authorized the suspension of the writ of habeas 
corpus in the cases of such persons and their arrest by 
military officers. 

This suspension of the writ of habeas corpus brought 
Taney into a sharp conflict with the National Adminis- 
tration. He stood firmly for a strict adherence to the 
Constitution, as he interpreted it, and his stern courage 
prevented him from cringing for a moment. At 2.00 
a.m. on May 25, 1861, John Merryman, a member of a 
prominent Baltimore County family, was arrested in 
his own home by a military force acting under orders 
of Major-General William H. Keim, commanding in 

3 Schouler, VI, p. 5. 



ROGER BROOKE TANEY 491 

the State of Pennsylvania, and was committed to the 
custody of General George Cadwalader, commanding 
at Fort McHenry, in Baltimore. 4 On the next day, Sun- 
day, May 26, George Hawkins Williams, one of Merry- 
man's counsel, went to Fort McHenry and had an inter- 
view with General Cadwalader, who refused to permit 
Williams to have, or to copy, or to read the paper 
under and by which Merryman was detained in custody. 5 
Taney stated later than Merryman appeared to have been 
"arrested upon general charges of treason and rebellion'' 1 
without giving the names of the witnesses. Upon the 
petition of Merryman, a writ of habeas corpus was then 
issued by Taney, sitting at chambers in Washington, 
addressed to the commandant of the fort, directing 
him to bring Merryman before the Chief Justice, in 
Baltimore, upon Monday. When the writ was taken to 
General Cadwalader he accepted service, but declined to 
produce Merryman. He sent Colonel Lee, his aide, who 
appeared in court, with regrets, giving as his excuse 
the reasons that the arrest was made, 6 "by the orders of 
the Major General commanding in Pennsylvania, upon 
the charge of treason, in being publicly associated with, 
and holding a commission as lieutenant in a company 
having in their possession arms belonging to the United 
States and avowing his purpose of armed hostility 
against the Government," and that the President of the 
United States had authorized General Cadwalader to 
"suspend the writ of habeas corpus for the public safety. " 
General Cadwalader showed courtesy to Taney and sent 
by Colonel Lee a respectful letter to the Chief Justice, 

4 See Tyler, pp. 640 and ff. 

6 Tyler, p. 641 

6 Tyler, p. 421. 1 Moore's Rebellion Record Diary 82, Docs. 301, 2 Scharf's 

Maryland 430. 



492 ROGER BROOKE TANEY 

who had come to Baltimore. 7 He stated that Merry- 
man had been arrested, without his knowledge nor 
direction, by Col. Samuel Yohe at General Keim's order, 
and had been brought to the fort by Colonel Yohe's order. 
Calwalader had been "informed that it can be clearly 
established that the prisoner had made often and un- 
reserved declarations of his association" with an "or- 
ganized force, as being in avowed hostility to the 
Government, and in readiness to cooperate with those 
engaged in the present rebellion against the Govern- 
ment of the United States." The officer's position was 
a difficult one and he felt that he must execute the 
"high and delicate trust" so that "in time of civil strife, 
errors, if any, should be on the side of the safety of the 
country." Yet he hoped that he and Taney could 
"cooperate in the present trying and painful position, 
in which our country is placed" and that they would 
not, "by any unnecessary want of confidence in each 
other, increase our embarrassments." He, therefore, 
requested that Taney would "postpone further action," 
until instructions could be received from President 
Lincoln. Taney, however, refused to delay, but he 
promptly issued an attachment against General Cald- 
walader for contempt and made the attachment return- 
able upon Tuesday. Washington Bonifant, the Marshal, 
took the writ to Fort McHenry and sent in his name 
at the outer gate. The sentry did not permit the 
marshal to enter and the messenger returned with 
the reply that there was no answer to the card. 
Upon receiving this information, Taney said that the 
"Marshal had the power to summon the posse comitatus 
to aid him in seizing and bringing before the Court the 
party named in the attachment;" but, "since the power 

7 Tyler, p. 643. 4 Nicolay and Hay 174. 



ROGER BROOKE TANEY 493 

refusing obedience was so notoriously superior to any 
the Marshal could command, he held that officer ex- 
cused from doing anything more than he had done." 
The scene was a dramatic one. The infirm and aged 
Chief Justice sat on the bench surrounded by a group 
of interested auditors. The afternoon was a gloomy 
one and the low voice of Taney could scarcely be heard, 
so that the listeners gathered closer and closer around 
him, in order that they might understand what he said. 
Taney then stated that the detention of Merryman was 
unlawful 8 because: The "President, under the Consti- 

8 Tyler, p. 645. The following memorandum is of great interest: 

"I was present at the hearing, in May, 1861, by Chief Justice Taney, of 
the Habeas Corpus case of John Merryman, who had been arrested for having 
taken part in the burning of the bridges over the Gunpowder and other streams 
(by direction of the Civil authorities), after 19 April, 1961, and who was con- 
fined at Fort McHenry, Baltimore. 

"The hearing was in the United States Court Room, on the first floor of 
what was commonly called the 'Old Masonic Building,' on the East side of 
St. Paul Street, half way between Lexington and Fayette Streets. 

"I remember very distinctly the Aide de Camp of General Cadwalder, who 
commanded at the Fort, in full uniform, with red sash and wearing his sword 
(and I remember wondering whether wearing a sword was proper in a Court 
Room), entering and coming up to the right of the seated Chief Justice (but 
not close to him). I was standing nearly between the two, and the scene is in 
my mind like a photograph. 

"The officer said that General Cadwalder had directed him to say that 
the President of the United States had suspended the writ of Habeas Corpus, 
and, therefore, he could not produce John Merryman — or closely to that effect. 
And he then retired. The Chief Justice thereupon ordered the Clerk of the 
Court to issue a Writ of Attachment to bring General Cadwalader into Court, 
returnable next day. 

"The next morning, at about 12 o'clock, I think, the Chief Justice took his 
seat, and called for a return to that writ. The United States Marshal stated 
that he had gone to Fort McHenry (the evening before?) but was refused ad- 
mittance at the gate, and so had been unable to serve the writ. The Chief 
Justice, after a few words about the failure to obey the writ, proceeded: 'Under 
these circumstances, I might order the Marshal to summon a posse comitatus, 
but as it is notorious that it would be met by a superior force, I will not require 
it. In a few days, I will file a written opinion with the Clerk of the Court, 



494 ROGER BROOKE TANEY 

tution of the United States, can not suspend the privilege 
of the writ of habeas corpus, nor authorize a military 
officer to do it; (2) a military officer has no right to 
arrest and detain a person not subject to the rules and 
articles of war for an offence against the laws of the 
United States, except in aid of the judicial authority, 
and subject to its control, and, if the party is arrested 
by the military, it is the duty of the officer to deliver 
him over, immediately, to the civil authority, to be 
dealt with according to law." After this statement, 
Taney remarked that he would put his opinion in writing 
and file it in the office of the Clerk of the Circuit Court 
before the end of the week. 

Accordingly, on June 1, the Chief Justice filed his 
famous opinion in the case of Ex parte Merryman. 9 For 

and direct him to have a copy placed in the hands of the President of the United 
States, so that that high Officer may perform his Constitutional duty of seeing 
that the laws are enforced.' These were almost his exact words, if not identi- 
cally the same. 

"During both sittings he never varied from his manner of calm dignity. 

"I have a distinct mental picture of the venerable Chief Justice, on one of 
these mornings, walking across the pavement into the Court House, leaning on 
the arm of his grandson, R. B. Taney Campbell, and passing through a crowd of 
respectful and sympathizing, but silent spectators. 

McHenry Howard, 

5 May, 1919." 

"Major William M. Pegram, at the meeting of the Maryland Historical 
Society, in April, 1919, also gave an interesting account of this event, of which 
he was an eye-witness. 

9 Tyler, pp. 423, 646; Taney's Dec, 246, 9 American State Trials 880; 
Moore's Rebellion Record, I, Diary 92. In a letter to Conway Robinson, written 
on April 10, 1863, he stated that he had left out, in the composition of the 
opinion, two references he wished he had included, viz.: (1) that the Declaration 
of Independence stated that one reason for the revolt of the Colonies was that 
the King "has affected to render the military independent and superior to the 
civil power," and the Constitution was framed on the principles of the Declara- 
tion; and (2) that Thomas Mifflin, President of the Confederation Congress, 
when accepting the resignation of Washington's command of the army, at 
Annapolis in 1783, said to him: "You have conducted the great military contest 



ROGER BROOKE TANEY 495 

once, Tyler's grandiose manner is not one whit too gran- 
diloquent in writing that "there is nothing more sublime 
in the acts of great magistrates that give dignity to 
governments, than this attempt of Chief Justice Taney 
to uphold the supremacy of the Constitution and the 
civil authority in the midst of arms." He recognized 
no truth in the maxim, "Inter arma, silent leges," and 
he fearlessly performed his duty, though the aged jurist 
knew what peril he might incur, and remarked, as he 
left the house of his son in law, James Mason Campbell, 
that "it was likely he should be imprisoned in Fort 
McHenry before night; but that he was going to court 
to do his duty." 10 The opinion plainly stated that he 
" had supposed it to be one of the points of Constitutional 
Law, upon which there was no difference of opinion 11 
and that it was admitted on all hands, that the privilege 
of the writ could not be suspended, except by Act of 

with wisdom and fortitude, invariably regarding the rights of the civil power 
through all disasters and changes." Taney closed his letter with the remark 
that Washington's conduct contrasted, "finely and nobly," with that of "the 
military men of the present day." (Tyler, p. 460.) 

Biddle (Const. Hist., p. 193) speaks of the ex parte Merryman opinion as 
"this admirable expression of the law upon a subject involving the right of a 
freeman of protection against arbitrary arrest and punishment" and as "a 
fitting conclusion to the long and distinugished life of the Chief Justice." 
He criticises Binney's defence of Lincoln. Mikell (4 Gt. Am. Lawyers 188) 
enthusiastically wrote that there is "no sublimer picture in our history than 
this of the aged Chief Justice — thefiresofCivilWarkindlingaroundhim, . . . 
serene and unafraid, while, for the third time in his career, the storm of partisan 
fury broke over his devoted head." 

10 Tyler, p. 427. Tyler's suggestion that the scene should be perpetuated 
in a painting has never been carried out, but I hope that it may yet appear 
among the mural decorations of the Baltimore Court House. Geo. T. Curtis 
(B. R. Curtis's Life I 240) spoke of the opinion in ex parte Merryman as a " noble 
Vindication of the writ of Habeas Corpus," which will command the admiration 
and gratitude of every lover of constitutional liberty, as long as our institutions 
shall endure." 

" Tyler, p. 647. 



496 ROGER BROOKE TANEY 

Congress." He commented upon the fact that "no 
official notice" had been "given to the courts of justice, 
or to the public, by proclamation or otherwise," that 
the President claimed this power. Reference was made 
to Jefferson's request to Congress, at the time of Burr's 
conspiracy, to determine whether the public required 
the suspension of the writ and then Taney boldly flung 
down the gauntlet, saying that he believed "that the 
President has exercised a power which he does not 
possess under the Constitution." The respect which 
Taney held for the high office that Lincoln filled required 
a plain and full statement of the grounds of the Chief 
Justice's opinion, so as to show that the legality of the 
President's act was questioned, after "a careful and 
deliberate examination of the whole subject." 

The clause of the Constitution, which authorizes the 
suspension of the privilege of the writ of habeas corpus 
is in the ninth section of the first article. This article is 
devoted to the legislative department of the United 
States, and has not the slightest reference to the execu- 
tive department. After the grant of powers to Congress, 
the Constitution guards "certain great cardinal prin- 
ciples, essential to the liberty of the citizens, and to the 
rights and equality of the States by denying to Congress, 
any power of legislation over them, which might have 
been "attempted, under the pretext that it was neces- 
sary and proper to carry into execution the powers 
granted." "The great importance which the framers 
of the Constitution attached to the writ of habeas 
corpus to protect the liberty of the citizens is proved by 
the fact that its suspension, except in cases of invasion 
and rebellion, is first in the list of prohibited powers — 
and even in these cases, the power is denied, and its 
exercise prohibited, unless the public safety shall re- 



ROGER BROOKE TANEY 497 

quire it." Congress may, in truth, judge conclusively, 
as to the requirement of the public safety, "but the 
introduction of these words is a standing admonition 
to the legislative body of the danger of suspending" 
the writ. 

It is the second article of the Constitution, Taney 
continued, that provides "for the organization of the 
executive department and enumerates the powers con- 
ferred upon it and prescribes its duties. And if the high 
power over the liberty of the citizen, now claimed, was 
intended to be conferred on the President, it would 
undoubtedly be found in plain words in this article. 
But there is not a word in it that can furnish the slightest 
ground to justify the exercise of this power." The 
article carefully limits his authority and his powers, in 
relation to the civil duties, as well as those belonging to 
his military character. "He may not even arrest any 
one charged with an offence against the United States," 
in Taney's opinion, "nor can he authorize any officer, 
civil or military, to exercise this power," for the fifth 
article of the Amendments to the Constitution ex- 
pressly provides that no person "shall be deprived of 
life, liberty, or property without due process of law — 
that is judicial process." Even if Congress suspended 
the privilege of the writ of habeas corpus and a "person, 
not subject to the rules and articles of war, was after- 
wards arrested and imprisoned by regular judicial 
process," Taney held, that "he could not be detained in 
prison, or brought to trial before a military tribunal," 
without violation of the Sixth Amendment, assuring the 
accused the right to a public jury trial. 

The President's only power, where "the life, liberty, 
or property" of a private citizen are concerned, in 
Taney's view, was that given him in the third section of 



498 ROGER BROOKE TANEY 

the second article, "which requires that he shall take care 
that the laws shall be faithfully executed. " That clause 
meant that "he is not authorized to execute them him- 
self, or through agents or officers, civil or military, 
appointed by himself; but he is to take care that they 
faithfully carried into execution, as they are expounded 
and adjudged by the coordinate branch of the Govern- 
ment, to which that duty is assigned by the Constitu- 
tion." In other words, in exercising this power, the 
President acts in subordination to judicial authority, 
assisting it to execute its process and enforce its judg- 
ments. 12 

Taney believed that these "provisions in the Consti- 
tution" were "expressed in language too clear to be 
misunderstood by anyone" and that they 

left no ground whatever for supposing that the President, in any 
emergency or in any state of things, can authorise the suspension of 
the privilege of the writ of habeas corpus, or arrest a citizen, except 
in aid of the judicial power. He certainly does not faithfully 
execute the laws, if he takes upon himself legislative power, by 
suspending the writ of habeas corpus, and the judicial power also, 
by arresting and imprisoning a person without due process of law. 
Nor can any argument be drawn from the nature of sovereignty, 
or the necessity of government for self defence, in times of tumult 
and danger. The Government of the United States is one of 
delegated and limited powers. It derives its existence and author- 
ity altogether from the Constitution. 

12 The inconsistency of this position with that taken by Taney's friend, 
Andrew Jackson, in the Cherokee Cases, can not escape any reader who recalls 
the period of Jackson's presidency. Taney's view here is far at variance with 
that of the man who said, "John Marshall has made his decision, now let him 
enforce it." At that moment, a stirring blast upon Taney's bugle horn would 
have been worth a thousand men, but he gave no encouragement to the forces of 
union and in the minds of his friends, the Perine family, he left the impression 
that he sympathized with secession. This impression may not have been correct, 
but Taney was blameworthy in so acting as to leave this impression. 



ROGER BROOKE TANEY 499 

After a somewhat extended account of the experience 
of England with the writ of habeas corpus under the 
Stuarts, which account Taney drew from Blackstone and 
Hallam and which he gave, because he maintained that 
the provision in the Fifth Amendment was "nothing more 
than a copy of the like provision in the English Con- 
stitution," he turned to American precedents and found 
them easily. Story's Commentaries 13 and Marshall's 
opinion in Ex parte Bollman and Swarthwout 14 dis- 
tinctly placed the power to suspend the writ in the hands 
of Congress. 

Taney could not forget that the suspension of the 
writ was not the only point involved, but he fore- 
shadowed the ground later taken by the Court, for- 
bidding the establishment of military law, when the 
Civil Courts were available, 15 and he insisted that, up 
to the time of Merryman's arrest, "there had never 
been the slightest resistance, or obstruction, to the 
process of any Court, or Judicial officer of the United 
States in Maryland, except by the military authority." 
Therefore, the military officer, who "had reason to 
believe" that Merry man "had committed any offence 
against the laws of the United States," ought to have 
gone to the proper legal authorities and followed the 
ordinary course of the law. 

If the authority confided by the Constitution to the 
judiciary may, "under any circumstances, be usurped 
by the military power at its discretion, the people of 

» III Sec. 1336. 

" 4 Cranch 95. 

Willoughby (Supreme Court, p. 75) wrote that "when President Lincoln 
refused obedience to Taney's decision in the Merryman case, he acted in an 
unconstitutional manner." The "dilemma in which Lineoln was placed was 
the result of a form of government with limited powers." 

15 Ex parte Milligan. 



500 ROGER BROOKE TANEY 

the United States are no longer living under a govern- 
ment of laws, but every citizen holds life, liberty, and 
property at the will and pleasure of the army officer, 
in whose military district he may happen to be found." 
Such was the hard dilemma, which Taney placed before 
the country. He had exercised all his power, but that 
power had "been resisted by a force too strong" for 
him to overcome. He could only order that the pro- 
ceedings be filed in the Circuit Court and that a copy 
be sent to the President, in the hope that "the officer 
who has incurred this grave responsibility may have 
misunderstood his instructions, and exceeded the au- 
thority intended to be given him." 

"The natural strength" of the aged jurist's intellect 
had not been abated, when he penned this opinion. 
For forcibleness, perspicacity, and convincing logic, 
it was not exceeded by anything he ever wrote. Un- 
doubtedly, Taney was legally right and Lincoln was 
legally wrong. Undoubtedly, Lincoln's course was 
dangerous and, if acquiesced in, might well have been a 
detrimental precedent in the time of a less scrupulous 
and less devoted successor. Yet the reader must regret 
that the Chief Justice showed in his words, no apprecia- 
tion of the facts that the life of the country was at stake in 
those days and that to Lincoln much was to be forgiven 
because he loved much. The occasion offered Taney 
a magnificent opportunity to give men a clarion call 
to patriotic fulfilment of their Constitutional duties 
and to personal services to secure the preservation of the 
Union. The opinion is the product of the mind of a 
lawyer, not of that of a statesman, of a man who loved 
his country, but whose love was encrusted in legality. 
Taney sent a copy of the opinion to Lincoln, who ap- 
parently took no notice of it, a fact which must cause 



ROGER BROOKE TANEY 501 

regret as a blemish in the character of the great Presi- 
dent. Merryman was finally released without trial 16 
and a fierce war of pamphlets arose over the question 
of his arrest and detention. Lincoln's position found 
its chief support in a pamphlet entitled "the Privilege 
of the Writ of Habeas Corpus" by the great Philadelphia 
lawyer, Horace Binney. Taney's position found its 
leading advocate in his former associate on the 
Supreme Court Bench, Judge Benjamin R. Curtis. 17 

Lincoln felt that he should defend his position 18 
and, in the original draft of his message to Congress at 
the following session, wrote: 

In my opinion, I violated no law. The provision of the Con- 
stitution that the privilege of the writ of Habeas Corpus shall not 
be suspended unless, when in cases of rebellion of invasion, the 
public safety may require it, is equivalent to a provision — is a 
provision that such privilege may be suspended when, in cases of 
rebellion or invasion, the public safety does require it. I decided 
that we have a case of rebellion and that the public safety does re- 
quire the qualified suspension of the writ of Habeas Corpus, which 
I authorized to be made. Now, it is insisted that Congress, and 
not the Executive, is vested with this power. But the Constitu- 
tion itself is silent as to which or who is to exercise the power; 
and as the provision was plainly made for a dangerous emergency, 
I cannot bring myself to believe that the f ramers of that instrument 
intended that, in every case, the danger should run its course, 
until Congress could be called together, the very assembling of 
which might be prevented, as was intended in this case, by the 
rebellion. 

» 3 Scharf 's Md. 430. 

17 Life of Curtis, I, p. 350 and p. 459. S. S. Nicholas of Kentucky in a 
separate pamphlet and R. L. Buck in the Danville Quarterly Review for De- 
cember, 1861, also warmly upheld Taney's contention. 

18 4 Nicolay and Hay 176. See 6 Richardson's Messages and Papers of the 
Presidents 25 for final form. 



502 ROGER BROOKE TANEY 

Lincoln's logic is not convincing and has not convinced 
the American people. Congress by statute 19 vested the 
right of suspending the writ of habeas corpus in the 
President and that Statute impliedly asserted that the 
power to authorize such suspension was placed in itself 
alone. Winthrop, in his "Military Law" 20 sums up 
the whole matter, by saying that Taney's "ruling has 
been concurred in by a series of decisions in the United 
States and State Courts and by other recognized 
authorities." 

A curious sequel to this incident occurred in the Con- 
federate States. Alexander H. Stephens, Vice Presi- 
dent of the Confederacy, was bitterly opposed, during 
the latter part of 1864, to the attempts of Jefferson 
Davis to act in the same way as Lincoln had done. 
On December 5, he wrote his brother, Linton, from 
Richmond, that he had read Taney's opinion on the 
preceding day. "It is a great paper, I will try to have 
it reprinted in Georgia. It sets at naught the prevailing 
opinions here on the power of Congress over this great 
writ of right," 21 and on Christmas Eve, with the same 
purpose, he went to the Whig office and offered the 
proprietors $250, if they would republish Taney's 
decision. 22 

When he wrote his "Constitutional View of the War, " 
some years later, he had not changed his high opinion 
of the value of Taney's opinion, the text of which he 
printed in an appendix to the book. " In the decision, " 
he wrote, "will be found those vital principles of our 
federal compact — made for war as well as for peace — 

18 Act of 1813, chapter 81. 

20 Pages 53-57. 

21 Johnston and Browne's "Life of Stephens," p. 475. 

22 Life of Stephens, p. 476. 



ROGER BROOKE TANEY 503 

which should ever be the guide of all in authority, 
whether in the civil or military service, and which will 
remain forever to be studied and cherished by 
every true friend of the Constitutional Liberty in this 
Country." 23 

Taney's bitterness against the action of the President 
was so great that when his wife's grandnephew, Mc- 
Henry Howard, came to bid him goodbye before starting 
South to enlist in the Confederate Army, two or three 
days before June 1, Taney said to the young man: 
"The circumstances under which you are going are not 
unlike those under which your grandfather (Col. 
John Eager Howard) went into the Revolutionary 
War." 

Yet, Taney's detachment from partisanship was such 
that he left the impression on his ardent young relative 
that "he held to his lofty ideal of being at the head of one 
of the three great coordinate departments of govern- 
ment under the Constitution, and confined himself to 
his duties in that high office." 

Taney's own view upon secession and the proper 
policy to be pursued toward the sister States, was that 
it were better to permit the South to depart from the 
Union, as he showed in a letter he wrote ex-President 
Franklin Pierce from Washington, on June 12, 1861, 
in answer to one from Pierce expressing approval of the 
opinion in the Merryman case. 24 

His sentiments were expressed nowhere else in writing, 
as far as I know, and are so important that they should 
be reproduced in full. Taney wrote: 

Your cordial approbation of my decision in the case of the 
habeas corpus has given me sincere pleasure. In the present 

23 Vol. II, p. 414. 

24 The letter is printed in 10 Am. Hist. Rev. 368. 



504 ROGER BROOKE TANEY 

state of the public mind, inflamed with passion and seeking to 
accomplish its object by force of arms, I was sensible of the 
grave responsibility which the case of John Merryman cast upon 
me. But my duty was plain — and that duty required me to 
meet the question directly and firmly, without evasion — whatever 
might be the consequences to myself. 

The paroxysm of passion into which the country has suddenly 
been thrown, appears to me to amount almost to delirium. I hope 
that it is too violent to last long, and that calmer and more sober 
thoughts will soon take its place; and that the North, as well as 
the South, will see that a peaceful separation, with free institutions 
in each section, is far better than the union of all the present states 
under a military government, and a reign of terror preceded too 
by a civil war with all its horrors, and which, end as it may, will 
prove ruinous to the victors as well as the vanquished. But at 
present, I grieve to say, passion and hate sweep everything before 
them. 

The Merryman case was not the only thing which 
troubled Taney at this time. He had invested his 
"very small fortune," entirely, in Virginia state stock. 26 
After he removed from Baltimore to Washington, he 
appointed a friend, Mr. D. M. Perine, as his attorney in 
fact, to collect the interest through the Union Bank, 
where Taney still kept his account. In the latter part 
of June 1861, Mr. Perine sent the order for its payment 
as usual and had it returned to him unpaid, on account 
of a law recently passed by Virginia, forbidding the 
"payment of dividends to stockholders in the non- 
seceding States." A few days later, the Union Bank 
received a letter from its Richmond correspondent 
requesting the return of the order and stating that an 
attempt would be made to have the interest paid. Mr. 
Perine wrote Taney to ask his opinion and, on July 18, 



26 



Tyler, pp. 479-482. 



ROGER BROOKE TANEY 505 

Taney replied from Washington, refusing to consent 
that any steps be taken to collect the money. He 
wrote his friend: 

I cannot receive the money. It is true it is due to me from the 
State; but. . . . if mine is paid, it is a matter of favor and not 
of right, under the existing law of the State. If I were a private 
individual, I would accept it; but, in my official position and in 
the present posture of public affairs, I cannot consent to an ex- 
ception in my favor, when other stockholders in Maryland are 
refused one. 

I am sensible that this proposition has arisen from the personal 
kindness of friends in Richmond, who know that public life has not 
enriched me; and I am very sure that it never entered their minds 
that anyone would suspect them of unworthy motives in offering, 
or me in receiving it. But yet I think the offer was made inad- 
vertently and under the impulses of kind feelings which prevented 
them from looking at the interpretation which baser minds might 
put upon the offer. Malignity would not fail to impute unworthy 
motives to them and me, and in the present frenzied state of the 
public mind, men, who do not know my Virginia friends or me, 
would be ready to believe it. 

The letter is one of a high-toned, upright gentleman, 
but the loss of the income must have tried Taney sorely. 

In December, 1861, the Supreme Court met as usual, 
there being two vacancies on the Bench. Taney was 
ill a great part of the term and yet he took an active 
part in the work of the tribunal. Justice McLean had 
died and Taney delivered a brief eulogy over him. 26 
He also delivered a number of short opinions upon 
matters of practice, as was his wont. 27 He held that to 

26 1 Black 12. 

27 (1) Brown v. Hart, 1 Black 38, Writ of error and service of citation on 
lawyer; (2) Wabash and Erie Canal v. Beers, 1 Black 54, finality of decree of 
Circuit Court; (3) Hecker v. Fowler, 1 Black 95, writ of error not on record; 



506 ROGER BROOKE TANEY 

have a review of the action of a State Court on the 
ground of violation of the State Constitution the point 
must have been raised in the Court below. 28 In other 
cases, he decided that it was not negligence to present 
on Monday for payment, a check drawn on Saturday; 29 
and that, though a corporation is not a citizen within 
the meaning of the Constitution, yet there was a legal 
presumption that its members are citizens of the State 
in which the corporation had its legal existence. 30 
He refused to grant a writ of prohibition against the 
execution of the penalty of death imposed upon a man 
for engaging in the African slave trade, which had been 
declared to be piracy, 31 In two cases, he discussed the 
limits of the admiralty jurisdiction, 32 holding that, 
while the Court had never regarded the federal admiralty 
powers restricted to those used in England, yet it did 
not claim all civil law powers tor admiralty courts. 

The year of 1862 wore away, with its unsuccessful 
Peninsular Campaign in Virginia of the Army of the 
Potomac under McClellan and the unsuccessful Mary- 
land campaign of the Army of Northern Virginia under 
Lee. Lincoln filled the vacancies in the Supreme 
Court by the appointment of two Union men, Justices 
Clifford and Field. The Session of the Supreme Court, 
which opened in December 1862, was the last at which 
Taney presided. His health was clearly failing and he 

(4) U. S. v. Knight, 1 Black 488, procedure as to reopening a case concerning 
land ownership in California; (5) Maguire v. Tyler, 1 Black 195. He dissented 
(p. 203) in a case involving a Louisiana land title, as he thought there was no 
jurisdiction. 

28 Farney v. Towle, 1 Black 350; Hoyt v. Sheldon, 1 Black 516. 

29 Brown v. Hart, 1 Black 38. 

30 Ohio & Miss. R. R. v. Wheeler, 1 Black 286. 

31 Ex parte Gordon, 1 Black 503. 

32 Bags of Linseed, 1 Black 108; Steamer St. Lawrence, 1 Black 522. 



ROGER BROOKE TANEY 507 

delivered only three opinions at that term and these 
were brief and in unimportant suits. 33 

The most important event of this term in which Taney 
took active part was the decision of the Prize Cases, 
which involved the question as to whether Civil War 
existed before Congress declared it on July 13, 1861, 
and, consequently, whether Lincoln had the right to 
blockade the coasts of the Confederate States prior to 
that time. 34 

Richard H. Dana wrote that it was a "difficult and 
delicate task" to satisfy the Supreme Court that the 
executive had possessed this right, without "weakening 
a claim to treat the Confederates as rebels," and that 
there was a common belief that the Court at the outset 
"was inclined to very different views, some even doubting 
the right to use force against the rebels. " The decision 
was in favor of the lawfulness of Lincoln's establishment 
oLthe blockade; but Taney joined with Justices Catron 
and Clifford, in agreeing with Justice Grier's dissenting 
opinion, and the decision was made by the narrow 
majority of one. 

During the sitting of the Court, Justice Wayne wrote 
Taney, suggesting that the Justices call upon the 
President, on New Year's Day, 1862. Too great bitter- 
ness had entered Taney's soul to permit him to do this 
and he briefly responded that he expected to have 

33 (1) Callan v. May, 2 Black 543, concerning real estate in the District of 
Columbia. He held that the allowance of an appeal does not show that the 
judge granting it thought the appellant was right. (2) Congdon v. Goodman, 
2 Black 574. The controversy was held to be not a Federal but State one. 
(3) De Kraft v. Barney, 2 Black 714, another case from the District of Columbia 
Court. Jurisdiction must come through money involved, or a right the value of 
which may be calculated in money, not through a guardianship of the person and 
property of children. 

34 See T. K. Lothrop's Charles Francis Adams, vol. II, p. 414. 2 Black 
635. 



508 ROGER BROOKE TANEY 

guests on that day and, besides, that he knew of no 
binding custom which should cause it to be necessary 
for the justices to make such a call. 35 

In February 1863 36 Taney wrote the Secretary of the 
Treasury a powerful protest against the levy of an 
income tax of three per centum upon the salaries of 
federal judges. He appealed to the Constitutional 
provision that the compensation of the judges "shall 
not be diminished during their continuance in office" 
and, properly, claimed that the tax was such a diminu- 
tion. This provision of the Constitution is not only 
plain, but is one of the "most important and essential" 
ones. "The articles, which limit the powers of the 
Legislative and Executive branches of the Govern- 
ment," Taney wrote, "and those which provide safe- 
guards for the protection of the citizen in his person 
and property, would be of little value, without a Judi- 
ciary to uphold and maintain them, which was free 
from every influence, direct or indirect, that might by 
possibility in times of political excitement, warp their 
judgments." 

He spoke thus of the matter: 

The Judiciary is one of the three great departments of the govern- 
ment, created and established by the Constitution. Its duties and 
powers are specifically set forth and are of a character that requires 
it to be perfectly independent of the other departments. And in 
order to place it beyond the reach, and even above the suspicion 
of any such influence, the power to reduce their compensation is 
especially withheld from Congress and excepted from their power 
of legislation. 

Although the act was in so far "unconstitutional and 
void, " there was no way to bring the matter before the 

85 13 Md. Hist. Mag. 167. 
36 Tyler, 432. 



ROGER BROOKE TANEY 509 

Secretary except by letter, for no judicial proceeding 
upon this question could with propriety be heard and 
decided by any judge, since all had an interest in it. 
Taney was unwilling to "leave it to be inferred," from 
his silence, that he admitted or acquiesced in the right 
of the Legislature to diminish, in any way, the salaries 
of judges. "Having been honored with the highest 
judicial station under the Constitution," Taney con- 
tinued, "I feel it to be the more especially my duty to 
uphold and maintain the constitutional rights of that 
department of the Government, and not by any act or 
word of mine, have it supposed that I acquiesce in a 
measure that displaces it from the independent position 
assigned to it by the statesmen who framed the Con- 
stitution." He requested that the protest be placed on 
the public files of the Treasury Department. The 
Secretary, Salmon P. Chase, who afterwards succeeded 
Taney as Chief Justice, took no notice of this letter 
and, after waiting for several weeks, Taney, with the 
assent of his fellow Justices, had the letter entered on 
the Court's records. 

Taney was unquestionably right in his contention 
and, in April, 1872, the Treasury Department changed 
its practice and ceased to deduct any part of the Judges' 
salaries. 

About this time, must be dated two manuscript 
opinions which are in the New York Public Library. 
One dealt with paper money and the possibility of 
Congress making it, by enactment, a legal tender for 
the payment of debts. Taney denied the power to do 
this, as it was neither granted in express terms, nor 
incident to a power conferred, nor necessary and proper 
to carry out such a power. The power to emit bills of 
credit had been denied to the States and was not con- 



510 ROGER BROOKE TANEY 

ferred on Congress. Congress had power to fix the 
value of foreign coin, to prevent States from making 
such coin a legal tender at an exaggerated value; to 
coin money, that is to stamp marks of value on bits of 
metal; and to borrow from willing lenders; but these 
powers are far different from the power to clothe paper 
money with the qualities of legal tender. 

The other opinion was against the constitutionality 
of the conscription law. The Confederacy which existed 
prior to the Constitution was a mere league of indepen- 
dent States. Under the Constitution, a line of division 
was marked out and each government was independent 
of the other in the sphere assigned to it. " Neither owes 
allegiance to, or is inferior to the other," Taney con- 
tinued. "The citizen owes allegiance to the general 
government to the extent of the powers conferred on it, 
and no further, and he owes equal allegiance to the State, 
to the extent of the sovereign power they reserved." 
He shows in his discussion, the old fatal dualism, the old 
failure to distinguish between fealty and allegiance, the 
old refusal to acknowledge that no man can serve two 
masters. Neither government, in Taney's view, "could 
lawfully afford protection to the citizens beyond the 
limits of their respective powers, no allegiance can be 
claimed or is due, from the citizen to either government 
beyond those limits." It is a divided allegiance. 37 The 
"sovereignty of the general government is not a general 
and pervading one" and "the sovereignty of the State, 
to the extent of the reserved powers, is wholly indepen- 
dent of the general government. " 38 Congress may raise 
armies exclusively under federal control, but these 



this. 



37 He cited Ableman v. Booth to prove this statement. 
8 He cited the 11th Amendment to the United States Constitution to prove 



ROGER BROOKE TANEY 511 

national forces must be volunteer. If conscription is 
constitutional, the militia of the States is absorbed in 
the army. Great Britain raised her armies by volun- 
teering and such was the contemporaneous interpreta- 
tion of the power given Congress. The war power of 
the federal government is as clearly defined in the 
Constitution as is the peace one. Under any other 
interpretation, the government created by the Con- 
stitution is put aside and a temporary one is installed 
in its place. The State has the sole right to enlist the 
militia, yet, under the conscription law, the Federal 
Government can disorganize the States, as their officers 
are not exempted, though Federal officers are. Taney 
added, " I speak of the Constitutional and lawful powers, 
not of the physical power which the Constitution had 
placed in the hands of federal government." The "Federal 
government pervades the whole nation and is supreme 
in its field, but it is limited" in its sphere. "The State 
sovereignty preserves tranquillity in the State, and 
guards the life, liberty and property of the individual 
citizen and protects him in his home and in his ordinary 
business pursuits." 39 

An interesting light on Taney's character is afforded 
in connection with the working of the draft. 40 His negro 
body servant Madison, who had waited upon Taney so 
long as to become indispensable to the Chief Justice in 
his extreme old age, was drafted. Taney's physician. 
Dr. Grafton Tyler, had long known that Madison had 
organic disease of the heart and was, therefore, dis- 
qualified. Taney also knew it; but when Dr. Tyler 

39 The Supreme Court, in the December Term 1917, decided that the Draft 
Law of 1917 was constitutional in the case of Arves v. U. S., 38 Sup. Ct. Rep. 
159. 

40 Tyler, p. 482. 



512 ROGER BROOKE TANEY 

proposed to make an affidavit to that effect, the old 
Roman refused to permit the servant to be so excused, 
but paid $100 for a substitute for him. 

Taney's last official duties were performed in con- 
nection with the Spring Term of Court in Baltimore, 
in 1863. In May, one Carpenter came before him 
there. For failing to obtain a permit prescribed for 
trade in Maryland, Carpenter's goods had been seized. 
Taney held that these executive regulations were void, 
and the acts done thereunder were illegal. He main- 
tained 41 "if these regulations had been made directly 
by Congress, they could not be sanctioned by a court of 
justice whose duty it is to administer the law according 
to the Constitution of the United States." There was 
no doubt, but that "the United States have no right to 
interfere with the internal and domestic trade of a 
State Undoubtedly, the United States au- 
thorities may take proper measures to prevent trade or 
intercourse with the enemy." 

Nevertheless, "a civil war or any other war, does not 
enlarge the powers of the Federal Government over the 
States or the people beyond what the compact has, 

given to it in time of war Nor does a civil 

war, or any other war, absolve the judicial department 
from the duty of maintaining, with an even and firm 
hand, the rights and powers of the Federal Government 
and of the States, and of the citizens, as they are written 
in the Constitution, which every judge is sworn to 
support." The aged justice, again, insisted against the 
truth of the saying: "inter arma, leges silent." 

The last decision which is known to have been given 
by Taney was one in the Circuit Court at Baltimore, 
on June 3, 1863, in the case of "The Claimants of a 

41 Appleton's American Annual Cyclopedia, 1863, p. 202. 



ROGER BROOKE TANEY 513 

large lot of merchandise versus the United States." 42 
The goods had been seized by the Provost Marshal in 
October, 1862, after the persons from whom they had 
been taken, had "been seduced and betrayed into the 
purchase of the goods by the Provost Marshal's officers, " 
as Taney bluntly put the matter. The agent of the 
Provost Marshal had wormed himself into the confidence 
of the family of one of the owners of the goods, had 
exhibited forged permits and clearances, had placed 
in the carpet bag of his supposed associate letters ad- 
dressed to persons residing in the South, and had in- 
duced him to load the goods on a schooner with the 
view of carrying them from North Point on the Patapsco 
River to Virginia. The agent went with him, until the 
vessel was overhauled and stopped by a Federal tugboat. 
Taney "could recall no similar case in the jurisprudence 
of this country or England. " He "could see no possible 
benefit to accrue to the government from such a seizure 
that would, in any way, compare with the great evil 
that would arise from a court of justice countenancing 
such conduct by a condemnation of the goods. It 
would encourage officers to betray the weak and im- 
prudent into all sorts of violation of law and would 
be demoralizing, in the extreme, to the officers them- 
selves. " He was at a "loss to see how any court of 
justice could condemn property under the circumstances 
of this seizure, unless the means employed be also coun- 
tenanced." The parties who claimed the goods came 
"from the South and, perhaps, intended to return on 
the first favorable opportunity;" but they had not 
engaged in any illicit trade previously and the goods 
"were not of a hostile character, tending to aid or arm 
those in rebellion against the government." In his 

42 Tyler, p. 436. 



514 ROGER BROOKE TANEY 

fierce indignation, Taney denied that the goods were, 
"at the time of the seizure, proceeding from Baltimore 
to Virginia. The claimants may have desired to carry 
them there and may have thought they were going 
there," but "the substantial fact is" — and after that 
fact Taney ever sought— "that they were going to 
Marshal McPhail's office. " The law required that both 
the goods and the vessel carrying them be forfeited, and 
this "vessel belonged to the Government officers!" 
He summed up the case, by saying that vessel and 
"goods were, although unknown to the claimants, in 
the custody and control of the Government officers all 
the time, and cannot be condemned under the libel in 
this case, even though the Court should overlook the 
immorality of the proceedings and look only at the case 
in its legal aspect." The goods, or their appraised 
value, were ordered to be returned to the claimants. 
As Taney said there was no probable cause for the 
seizure, the Marshal had to pay the "damages and costs 
sustained by the claimants." Tyler rightly styles 
these acts of the Federal officers as "vile practices," 
and this and other instances of these practices did much 
to cause a large part of the people of Maryland, for a 
whole generation, to feel hostility to the Republican 
party, which was in control of the Federal Government 
during the Civil War. 

There was a pleasant side to Taney's life, even during 
the troublous days of the war. Yearly, on his birthday, 
he received a letter of compliment from the Judges of 
the Court of Appeals of Maryland, which he acknowl- 
edged with the more pleasure, because he considered 
that, whatever of merit he had achieved, he owed to 
his "training in the Maryland Courts and the Maryland 
Bar." 43 

« Tyler, p. 449. 



ROGER BROOKE TANEY 515 

A few old friends were still left and to one of them, 
Mr. Justice James S. Morsell of the Circuit Court of 
the District of Columbia, Taney sent a photograph, as 
a token of friendship, in the spring of 1863. 44 The 
recipient was the last of the friends of Taney's youth in 
Calvert County, who "were remembered with great 
warmth of affection" by him. Judge Morsell was the 
older of the two. "They were born in the same neigh- 
borhood and were playmates, hunting wild game in the 
woods, and fishing and bathing in the streams and rivers 
of their native county," and were linked together "by 
their youthful joys," as Tyler writes, "in an enduring 
friendship." Morsell, in his note of acknowledg- 
ment of the photograph, referred to the "highly prized, 
early, and long continued friendship," between them. 

His relations with the officers of the Supreme Court 
were very pleasant, so that Tyler wrote, some seven 
years after Taney's death, in his somewhat florid style, 
that "his very name warms their hearts and brightens 

their countenances Such was the charm of 

his manner that every newly appointed officer, was, at 
his very first interview, brought to regard him with 
affectionate reverence." As a proof of this fact, Tyler 
quoted Ward Lamon, 45 who had been appointed Marshal 
of the Court by President Lincoln, as saying: "Chief 
Justice Taney was the greatest and best man I ever saw. 
I never went into his presence on business that his 
gracious courtesy and kind consideration did not make 
me feel that I was a better man for being in his presence." 
So too Mr. Meehan, the Librarian of the Court, 
exclaimed: "What a glorious old gentleman the Chief 
Justice is! He always treats me in such a way as to 

44 Tyler, p. 450. 

45 Page 448. 



516 ROGER BROOKE TANEY 

increase my respect for myself." Tyler's remark upon 
these speeches is that there was a notable combina- 
tion in Taney of "such an iron will, such a determined 
purpose, such undaunted courage, and all the heroic 
elements of character," with "such a delicate sentiment 
of kindness, manifested in his courtesy." The biog- 
rapher found the "source" in "his charity of heart and 
his high breeding." 

Not only the officers, but also the Associate Justices 
of the Supreme Court venerated him. On his eighty- 
seventh, and last birthday, in March, 1864, when he 
was detained at his home by indisposition, he was 
waited upon, in a body, by his brethren, who paid their 
respects officially to him and "tendered him their 
congratulations on the returning anniversary of his 
birthdays." Mr. Justice Wayne, who presided in 
Taney's absence over the Court, adjourned the session 
early to make this visit with his associates and, after 
they left the house, the officers of the Court with several 
members of the Bar and a few friends waited on Taney, 
who received them with "urbanity and affability." 46 

Taney's friend, Severn Teackle Wallis, who was 
afterwards his eulogist, wrote him annually from Balti- 
more on these birthdays and always received apprecia- 
tive replies from the aged judge. 47 In 1863, after 
thanking Wallis for his sincere and cordial approval of 
his conduct and praising Wallis for his course of opposi- 
tion to the National authorities which had led to an 
incarceration in Fort Warren, from which Wallis had 
just been released, Taney's gloomy feelings led him to 
continue: "At my advanced age, I can hardly hope to 
see the end of the evil times on which we have fallen. 

46 Tyler, p. 455. 

47 Tyler, pp. 458, 459. 



ROGER BROOKE TANEY 517 

But I trust you will live to see the civil power restored 
in Maryland to its supremacy over the military and the 
homes and firesides of its citizens once more safe under 
the protection and guardianship of law." A year later 
Taney's gloom had deepened, yet curiously enough, he 
never quite lost hope of the Republic and so he wrote: 

I have not only outlived the friends and companions of my early 
life ; but, I fear, I have outlived the Government of which they were 
so justly proud, and which has conferred so many blessings upon 
us. The times are dark with evil omens and seem to grow darker 
every day. At my time of life, I cannot expect to live long enough 
to see these evil days pass away; yet I will indulge the hope that 
you, who are so much younger, may live to see order and law once 
more return, and live long enough to enjoy their blessings. 

After all, there was an ineradicable root of Federalism 
in the man and his hope for Wallis found abundant 
fulfillment, for the latter lived until 1894. 

Another Baltimore friend, David M. Perine, also 
corresponded with him and, from time to time, enter- 
tained him at his country seat near Baltimore. On 
the eve of his birthday in 1862, Taney wrote Perine 48 
and in the letter, with great piety, expressed his "grati- 
tude to the Giver of all good, that I have been so long 
spared to those I love and that age has not been without 
true and tried friends to comfort and solace it. And 
among the foremost in that number, I need not say how 
sensible I am of your constant and unwearied friendship 
for now nearly forty years, and never forget the proofs 
you have given of it, in the darkest and most sorrowful 
scenes of my long life." He had been saddened by 
the misery which had so suddenly come upon the 
United States; but, though he saw no immediate hope 

48 Tyler, p. 452. 



518 ROGER BROOKE TANEY 

of an improvement in affairs, he serenely continued: 
"God's will be done; and we must meet it with the best 
faith of Christians and the firmness and courage of 
manhood." 

A year and a half later, 49 his letter to Perine was still 
gloomier. He never recovered from the slight put upon 
the Judiciary by the disregard of his opinion in the 
Merryman case, and the downfall of slavery, or the 
brightening prospect of Union success came but little 
into his vision when he wrote. He had been very ill and 
had suffered from the depression which naturally comes 
to an ill man, especially an aged one. He was again in 
his office, but had not left his home. He felt as "well 
as usual, but not so strong" as before his illness. During 
the hot season, he wrote that he had "often thought of 
the pleasant days I have passed at your house, en- 
joying the fresh country air and walking over your 
grounds. But my walking days are over." He had 
no thought however, of resigning his position and hoped 
to "linger along to the next term of the Supreme Court. 
Yet very different, however, that Court will now be 
from the Court as I have heretofore known it. Nor do 
I seen any ground for hope that it will ever again be 
restored to the authority and rank which the Con- 
stitution intended to confer upon it. The supremacy of 
the military power over the civil seems to be established; 
and the public mind has acquiesced in it and sanctioned 
it. We can pray for better times and submit with 
resignation to the chastisement which it may please 
God to inflict upon us." His prognostications as to 
the future of the Supreme Court were fortunately 
untrue and the next generation saw that tribunal re- 
stored to its pristine position of dignity and influence. 

49 On August 6, 1863, Tyler, p 454. 



ROGER BROOKE TANEY 519 

When his eighty-seventh birthday came, he wrote 
Perine, thanking him for his letter and, with more 
cheerfulness, told him that: "At the age of eighty-seven, 
I cannot hope to see many more birthdays in this world 
and can hardly hope to live long enough to see more 
peaceful and happier times. You I trust, who are so 
much younger than I am, will be spared to see and 
enjoy them." 50 Mr. Perine's son, Mr. E. Glenn Per- 
ine, sent him a carved walnut cigar box as a birth- 
day gift in 1864, and Taney's graceful note of thanks — a 
model of such an epistle, told the donor that Taney 
''took much pleasure in showing your birthday present 
to the Judges of the Supreme Court and other friends, 
who did me the honor of paying me a birthday visit, 
and having its beauty and taste admired by them all." 
His courtesy and thoughtfulness thus lasted until the 
very end of his life. 51 

Several months later, on June 24, 1864, he sent his 
photograph to his niece, Mrs. Alice Key Pendleton, 
wife of Hon. George H. Pendleton, together with a 
graceful note. With the photograph, he enclosed a 
sentiment which seemed to him, "although applicable 
to any situation in life, " to be "especially fit to be borne 
in mind by every Judge, who, in the present time, is 
called on to administer and maintain the law." 52 He 
remembered she had studied Latin and so copied, in 
the original, four lines from the third Ode in the third 
Book of Horace's Odes: 

Justum et tenacem propositi virum — 
Non civium ardor prava jubentium, 
Non vultus instantis tyranni 
Mente quatit solida. 



50 Tyler, p. 455. 

51 Tyler, p. 456. 
62 Tyler, p. 465. 



520 ROGER BROOKE TANEY 

In writing Tyler concerning her uncle, Mrs. Pendleton 
spoke of the "beauty of his life and character" and said 
that the sentiment "has a noble signification, as emanat- 
ing from him. So truly is it the precept and example 
of his life." 53 

To the end of his life, Taney was a "constant reader 
of current literature" and enjoyed novels. The British 
Quarterly Reviews and Blackwood' 's Magazine, he read 
"with singular interest." Tyler informs us that 54 
"newspapers, on all sides of politics, he had read to him 
daily. He had been fond of Macaulay's "History of 
England" and of Campbell's "Lives of the Chief Jus- 
tices" and of the "Lord Chancellors of England." 
Shakespeare was one of his favorite authors. 

In one of his later illnesses, Samuel Tyler sat up with 
him at night. 55 After Taney was convalescent, when- 
ever Tyler would come to see him, Taney would lie in 
bed, smoking a cigar, and talk with Tyler "to such a 
late hour, that one of his daughters would come into the 
room to break up the conversation. The topics of 
conversation were such as showed as great familiarity 
with every day life as any gentleman at any age would 
possess." Dr. Grafton Tyler, for many years the Chief 
Justice's physician, remarked often that Taney was 
"like a disembodied spirit; for that his mind did not in 
any degree participate in the infirmities of the body." 

Whenever friends came in to see him, he "inquired 
about everything that was going on." 56 During the 
autumn of 1864, he gradually failed in health and died, 
on October 12, in his eighty-eighth year. Friends car- 

« Tyler, p. 467. 
54 Tyler, p. 485. 
» Tyler, p. 457. 
M Tyler, p. 484. 



ROGER BROOKE TANEY 521 

ried his body from Washington to the cemetery of the 
Jesuit Novitiate in Frederick, where they placed it beside 
that of his mother for whom he kept his love to the 
very last. 57 Two members of the Frederick Bar, to 
whom Tyler dedicated Taney's life, Judge Richard H. 
Marshall and James M. Coale, with the consent of 
Taney's family, placed over Taney's grave a plain flat 
stone — a suitable memorial of the simple life of the 
jurist. 58 

67 Tyler, p. 485. 

88 Scharf's Chron. of Baltimore, p. 631. 



CHAPTER XVI 

After His Death 

James Schouler has written 1 that Taney was "an 
able lawyer, an honorable judge, an austere, upright 
man, to whose virtues and talents it was impossible to 
draw close attention, or to do full justice, while present 
passions raged." It is surprising, however, how spon- 
taneous and heartfelt a tribute was paid him, imme- 
diately upon the end of his life. 

On the day after his death, William Price, Esq., 
eulogized him in the United States District Court at 
Baltimore, saying: "It was a privilege to be employed 

with him in the trial of a case in Court In 

referring to the English authorities then most quoted, 
he would direct me to pass over the opinions of Kenyon 
and Grose and Ashurst and read what Buller said. He 
had great respect for the views of Lord Mansfield and 
thought Heath a very able judge." In one case, 
Price "found an authority directly with us in all its 
features, but I found also that, by a later decision, it 
had been overruled and I proposed to read the authority 
and rely on it, believing that the opposing counsel would 
fail to discover the later decision. 'But would you,' 
said he, 'impose a spurious authority upon the Court?'" 
Price continued. 

1 Schouler, History of the U. S., vol. VI, p. 527. He was a Union soldier 
during the Civil War and wrote elsewhere of Taney, that he had "many ad- 
mirable traits of character — being learned in the law, painstaking, upright, and 
full of dignity." He could take 'admiration unflinchingly," but was "wanting 
in the flow of healthy blood" — a rather mystifying expression. V History, 
377. 

522 



ROGER BROOKE TANEY 523 

Although dignity was a part of his nature, yet he was one of 
the most genial persons I ever knew. His acquisitions in general 
literature were not exhaustive, but there were certain books he 
had read with great interest and which he talked about with pleas- 
ure. Among them was Boswell's Life of Johnson, which he 
frequently declared to be the most delightful book that ever was 
written. He would repeat the sayings of the sage and those which 
were most surly seemed to please him best. 

He had not a particle of what men call genius. His mind was 
made up of pure logic and whether before the Court or Jury, he had 
always something to prove and every word he uttered contributed 
to that end. His style of speaking, though of the very best 
English, was simple and devoid of ornament. There was an intense 
sincerity in his manner, his powers of persuasion being equal 
to those of any person I have ever heard. Mr. Wirt used to say 2 
that he feared that angelic manner of his, more than all his other 
attributes. His power with the juries, which was very great, 
lay, as it always appeared to me, in his extraordinary faculty of 
so grouping and collating his facts as to impart to the circumstance 
which he chose to make the pivot of his argument an exaggerated 
signification from its position and the new relations it was made 
to bear to the other facts of the case. Minor circumstances were 
made to tell for more than their value, by the position in which 
he placed them. 

Particular expressions of great force would at times fall from 
him. . . . In defending a person charged with an assault, who, 
though first assailed, had, as it was alleged, so used his privilege 
of self defence as to become a trespasser ab initio, he said: " Gentle- 
men, if a man have a head like a post, you must hammer him like 
a post." This sentence comprised the entire argument. 

Judge William B. Giles, in his response, stated that, 
when he went upon the bench in 1853, he was a com- 
parative stranger to Judge Taney, but that, "in all 
our intercourse, I have received from him the greatest 

2 This saying is also attributed to William Pinkney. 



524 ROGER BROOKE TANEY 

kindness, and consideration, and cordiality, which won 
for him my warmest veneration and esteem . . . 
I have never known a purer, or better man, one who 
loved his country more, or whose heart was more alive 
to every warm and generous feeling of our nature." 3 
On the day following, October 14, a general meeting of 
the Baltimore Bar was held in the Superior Court Room, 4 
more numerously attended than any former "profes- 
sional assemblage ever held" in the City. Resolves 
were offered by Severn Teackle Wallis, Esq., and sec- 
onded by the eminent lawyer, William Schley, a native 
of Frederick, who had well known Taney's early career 
as a lawyer. In the course of his speech, Mr. Schley 
said that, 

As a member of society, he was always distinguished for his 
exemplary life and conversation. He was, indeed, a high-bred 
Maryland gentleman and no one, who was brought into inter- 
course with him, could have been otherwise than charmed by his 
urbanity, his courtesy and his kindness. There was no mani- 
festation on his part of conscious superiority. He exacted no 
deference, no homage, no reverence. These were accorded to him 
spontaneously. 

3 These proceedings and those of the following day were printed in a 
pamphlet. 

The Baltimore Alumni Association of Dickinson College in 1910 printed a 
pamphlet in memory of Taney, containing a photogravure of the portrait of 
him painted by Richard Blossom Farley, which now adorns the wall of Bosler 
Memorial Hall in the College. The pamphlet contains the address of J. Henry 
Baker, Esq., of Baltimore, at the presentation of the portrait to the Dickinson 
in 1908. 

The present writer prepared a sketch of Taney's life which was read before 
the P. L. Club in Baltimore in December, 1917, the Maryland Historical Society 
in April, 1918, and the Maryland Bar Association at Atlantic City in June, 1918, 
and which is printed in the Proceedings of the Association for that year. 

4 Scharf, "Baltimore City and County," 713. These proceedings were 
printed in pamphlet form contemporaneously. 



ROGER BROOKE TANEY 525 

He was generous to a fault. He gave freely and cheerfully 
with an open hand and willing heart out of his limited means. 

He was deeply grounded in the elements of the law, from early 
and close study and familiar with the writings of eminent jurists. 
Although he carefully examined all decided cases, yet he never 
based his decisions (except in matters of practice) on the authority 
of another's opinion, unless a controlling decision, without it had 
the concurrence of his own approval and judgment, and it is 
noticeable, in reading his opinions, that he seldom refers to ele- 
mentary writers, or even to judicial decisions. He drew from the 
accumulated fund of his own treasury of legal learning and he was 
self-reliant, because, with laborious industry, he had gathered 
largely in early life and had winnowed the chaff from the substance 
and had only garnered the latter. 

He was eminently practical, he understood his causes, prepared 
for the trial of every case in which he was engaged, at any sacrifice 
of personal convenience and comfort, and, in his forensic efforts, 
was stimulated more by an anxious desire to perform his duty to 
his client than by considerations of personal distinction. 

He had a temper, not merely quick, but naturally fierce, and 
yet his heart was full of kindness, benevolence, and generosity and 
he was even able to forgive his political enemies — he had no 
others — and died in charity with all. 

Reverdy Johnson, the leader of the American bar, 
followed Schley and referred to Taney as presiding over 
the Supreme Court, "with a courtesy, dignity, and 
ability that challenged the admiration of all who were 
familiar with its proceedings, or studied its judgments." 
He possessed "all the requisite learning" and "the 
politeness of manner, which is so important to a satis- 
factory administration of the functions of judge. In 
early life, a diligent student at the bar, having a diligence 
that never tired, with a mind singularly, accurate and 
at the same time comprehensive, with an elocution 
remarkably lucid and an integrity private and pro- 



526 ROGER BROOKE TANEY 

fessional, that no man of character ever ventured to 
question, from the moment he assumed the judicial 
station, he inspired universal confidence." 

Johnson had differed from Taney in politics and 
Taney had been a "decided politician," but, when he 
was nominated as Chief Justice, Johnson felt that he 
would be "governed solely by justice and law" and "was 
not disappointed in this expectation." "During his 
entire judicial career, no man can say with truth that 
his integrity was ever for a moment sullied, or his 
judgments influenced by any other than the most 
elevated and legitimate considerations. So unerring 
was his mind, so discriminating his thought, and so 
full his research (a research wonderful, when we re- 
member his own feeble state of health) that it hap- 
pened in very few instances that his brethren differed 
from him and in yet fewer that his judgments on cir- 
cuit were reversed." 

No judge "possessed greater capacity nor manners 
more admirably fitted to make the practice of our pro- 
fession pleasant and instructive, or who ever admin- 
istered justice with more absolute impartiality." 

Judge Merrick spoke next, remarking that the reputa- 
tion of Taney's "talents and his inflexible adherence to 
what his judgment approved and his private worth, 
compelled him into public stations, which his modesty 
had not sought." Reference was made to "His counte- 
nance, so calm, so patient, so attentive, and to the deep 
light of his tranquil eye, which seemed to reflect back 
from the inner intelligence, illumination upon the argu- 
ments which were addressed to the court, and to the 
even hand with which he held the scales of justice." 

Andrew Sterrett Ridgely had been a "frequent and 
always kindly received visitor at Taney's unostenta- 



ROGER BROOKE TANEY 527 

tiously hospitable board and by his truly happy and 
cheerful fireside. ' ' He remembered the ' ' kind and benig- 
nant face" of Mrs. Taney, "that noble hearted wife and 
mother." He recalled also the "judge's" gracious 
urbanity and kindly courtesy" and his feebleness, which 
compelled him, "for years past, to recline upon the 
judgment seat when administrating justice." 

Judge Martin of the Superior Court, who presided at 
the meeting, called attention to Taney's "perspicuity," 
as the "leading trait in his mental power." "There 
was no glare about his intellect, but it was perfectly 
luminous, so that, whether you admitted, or disputed 
his proposition, it was absolutely impossible not to 
understand what he intended to communicate." Judge 
Martin bore testimony to Taney's "bearing and deport- 
ment as a judge," as, "at all times, so graceful and 
urbane, so conciliatory and yet so fine" and to "his 
tone" which was "so elevated and refined." 

The most wonderful testimonial to Taney, however, 
is to be found in the proceedings of the meeting of the 
members of the Bar of the First Circuit held at Boston. 
Three days after Taney's death, on Saturday, October 
15, at a preliminary meeting a committee was appointed, 
composed of Benjamin R. Curtis, formerly Associate 
Justice of the Supreme Court, Caleb Cushing, formerly 
Attorney General of the United States, Richard H. 
Dana, Jr., the United States District Attorney, and 
Sidney Bartlett, Chairman of the Meeting, to prepare 
resolutions. The Committee reported to an adjourned 
meeting, on Monday the seventeenth 5 and the report, 
which was unanimously adopted, expressed "admira- 
tion and reverence for the preeminent abilities, profound 
learning, incorruptible integrity, and signal private 

8 Tyler, p. 508; Curtis's Misc. Writings, II, p. 336. 



528 ROGER BROOKE TANEY 

virtues exhibited in the long and illustrious judicial 
career of the late lamented Chief Justice Taney." 

Then Curtis rose to speak. He had strongly differed 
from Taney in the Dred Scott decision and he had later 
supported him in the Merryman Case. No man in New 
England was abler and none of them knew Taney better. 
The major part of his address has been previously 
mentioned. 

His conclusion was that "it is one of the favors 6 which 
the providence of God has bestowed upon our once 
happy country, that, in the period of 63 years, this great 
office has been filled by only two persons, each of whom 
has retained, to extreme old age, his great and useful 
qualities and powers. The stability, uniformity, and 
completeness of our national jurisprudence are, in no 
small measure, attributed to this fact." 

The Rev. Dr. Clover, a clergyman of the Protestant 
Episcopal Church, preached a memorial sermon 
upon Taney in Springfield, Illinois, on November 
6, 1864. 7 He had known the Chief Justice, "in the 
relations of social intercourse," and found him "most 
exemplary." "In nothing did his attractiveness of 
character more appear than in his happy and affable 
manner, coupled with the most graceful and dignified 
bearing, which rendered his society, even to the hum- 
blest, most congenial and delightful." A close student 
throughout his whole life, Taney spent most of his day 
in his library; "but, when evening came, at the simple 
announcement that some friend was in the parlor, it 
mattered not whether young or old, distinguished or 
obscure, the tall form of the old gentleman would enter, 
and the marked and peculiar features of his face light 

6 Tyler, p. 515, Curtis's Misc. Writings, II, p. 342. 

7 Tyler, p. 468. Peter Lewis Clover entered the ministry at Taney's 
suggestion. 



ROGER BROOKE TANEY 529 

up and beam with a pleasant smile of welcome which no 
words can express." 

A year later, 8 General Robert E. Lee wrote Mr. 
Tyler that "my memory is full of the pleasure and 
improvement I always enjoyed in his company and in 
my intercourse with his charming and intellectual 
family." 

The memorial meeting of the Bar of the Supreme 
Court occurred on December 6, 1864, upon the re- 
assembling of that Tribunal. 9 Jonathan Meredith of 
Baltimore was made Chairman and said that, as rep- 
resentative of the next generation of lawyers to that 
of Taney, he desired to "mingle their sorrow with the 
sorrow of the whole American Bar, for the loss of a 
deeply read and profoundly learned lawyer, of an elo- 
quent advocate, of a dignified, enlightened and upright 
judge, and of a Christian gentleman, whose purity of 
life was high beyond all reproach." A Committee, 
having the Hon. Thomas Ewing of Ohio as its chairman, 
was appointed to present resolutions, and in making 
their report, Ewing said: "I for one, knew him from 
his first accession to the Bench. I have been present 
at every term when he has presided in this Court since 
that time, from the first to the last; and I can bear 
ample testimony to his courtesy, to his kindness, to 
his consideration of the members of the Bar, to his 
judicial capacity and to his integrity as a judge." The 
report referred to Taney, as a man "of spotless and 
benevolent life," as "the model of a good man and a 
Christian gentleman. " "Profoundly learned in the law 
and naturally gifted with a clear, direct, and logical 
mind, he, nevertheless, listened for instruction from the 

s November 14, 1865. Tyler, p. 467. 
9 Tyler, p. 486. 



530 ROGER BROOKE TANEY 

humblest advocate who appeared before him in any 
case. With all the qualities of a good judge, and with 
the natural consciousness of his superiority to ordinary 
men, he was ever attentive and useful to those whose 
duty brought them before him to attempt to influence 
his determination as a judge, and none who knew him 
could doubt that his conclusions were always the result 
of conscientious and enlightened study and reflection." 

Mr. Stansberry of Ohio then spoke of "that quiet 
dignity, that perfect composure and, above all, that 
amiability and goodness of heart," for which Taney 
"was so distinguished." For more than a quarter of a 
century the speaker had argued cases before the Su- 
preme Court and "that long experience" gave Stans- 
berry "confidence" in saying that Taney "never 
failed to sustain the dignity and requirements of the 
office. " Although "he had long passed the age, when 
the most vigorous show signs of mental decay, his 
intellect seemed as clear as ever." 

Reverdy Johnson spoke as a member of the Maryland 
bar, and as one who knew Taney as far back as 1815, 
when Johnson was admitted to practice at the Court 
of Appeals. He had enjoyed Taney's "confidence and 
his friendship, almost from the first, "and greatly did" 
Johnson "profit from it." In social life, Taney "was 
as attractive as he was instructive and eminent in pro- 
fessional life. " He was esteemed "as much as a man, " 
as he was "admired as a lawyer and a judge." "In 
everything he said from the Bench and in his uniform 
conduct as its chief, all saw how peculiarly fitted he was 
for his high office. While his mind, evidently, was 
capable of mastering, and uniformly mastered, the great, 
the momentous, judicial questions which were often 
before him, it was capable of solving and did solve, the 



ROGER BROOKE TANEY 531 

minutest which the rules of practice involved and upon 
which the correctness of so much of a judge's usefulness 
depends." 10 Charles O'Conor of New York followed 
Johnson and, in the language of perfervid hyperbole, 
exalted the Chief Justice, speaking of his clear, vigorous 
and perfectly unimpaired intellect," of the "strong 
emotions of affectionate and reverential regret at 
his death which were universally felt," of the "gracious 
dignity of his bearing and the stern impartiality of his 
judgment." On December 7, the next day, Mr. Ewing 
presented these proceedings of the Bar to the Supreme 
Court. After the resolutions were read, Mr. Justice 
Wayne, who presided, replied to them. 11 Wayne had 
sat on the bench with Taney, throughout the whole of 
the latter's judicial career and so his judgment possessed 
great value. In Taney's "honorable and useful life," 
he was early "marked to be one who could be relied 
upon on those public exigencies which require firm 
character and statesmanlike ability to manage and 
control successfully." "By temperament he was 
ardent. Its impulses, however, could only be seen in 
his eyes and heard in fervent language, when he was 
excited on an occasion; but he was never impetuous or 
vehement. He was courteous at all times to every one 
without affectation. He was cautious and circumspect, 
without being indecisive, and the resolves of his pur- 
poses and principles were habitually expressed in words 
showing the sincerity of his convictions, without offence 
to any who thought differently. He was generous and 
the only measure of his liberalities was his inability to 

10 In a letter to Tyler, among the manuscripts belonging to the Maryland 
Historical Society, dated July 14, 1871, Johnson wrote that he could not 
improve upon these remarks. (13 Md. Hist. Mag. 170.) 

11 Tyler, p. 502; 2 Wallace IX. 



532 ROGER BROOKE TANEY 

give more. " "His control of himself and his temper was 
no doubt the result in part of a practical philosophy, 
but it had its foundation in his Christian faith. " Wayne 
felt it a "happy occurrence" that two such men as 
Marshall and Taney "should have been Chief Justices 
in succession and that the life of each of them should have 
been so prolonged." 

G. W. Searle wrote some keen sentences concerning 
Taney in a magazine article, which appeared in that 
month. 12 "His mind was comprehensive, acute, and 
logical; not brilliant, imaginative, or impulsive." "In 
reading, he was highly respectable, but he relied more 
upon himself than his library for correct legal conclu- 
sions. His patience in listening, his calmness in de- 
ciding, his candor, care, and independence in judging, 
were the admiration of the bar. A serious and hearty 
love of legal truths and a stern and unflinching devotion 
to legal justice were the great moral characteristics of 
the man." In the conduct of his court, he was a "pat- 
tern of a dignified Chief Justice. There was no pert 
colloquy with the bar, no hasty interruption nor rude 
suggestions. All was calm, deferential, and judicial. 
. . . . He relied on principles, rather than on 
precedent. He was more of a legal philosopher than a 
case lawyer. His legal common sense was worth more 
than a library of text books." 13 "Notwithstanding his 
ideas as to the right of property in man, he never 
adopted the Southern theory of States rights as a means 
of protecting that property; on the contrary, he held to 
the ideas of Jay, Marshall, Kent, and Webster, that our 

12 December, 1864. 10 Nat. Q. R. 51. 

13 Searle exaggerates, p. 57, in saying that "By whomsoever delivered, 
the opinions bear somewhat of the impress of Taney's mind and character." 

He defends the Dred Scott Decision. 



ROGER BROOKE TANEY 533 

national government derived its powers by direct grant 
of the people themselves, as individuals, and that it was 
not a simple confederation of Sovereign States, each at 
liberty to judge for itself when the compact of union was 
violated and to withdraw at its pleasure, or discretion, 
or even on its own view of necessity." His "constitu- 
tional system was a reflex of that of Marshall," except 
as to the United States Bank. 

In the conference room, Taney "shone with especial 
lustre." His influence was "conservative of the past, 
rather than adventurous for the future." "Equally 
free from servility and arrogance," he was a "plain, 

feeble, unpretentious old man The affable 

and winning manners of the man, the calm, equable 
temper, the uniform impartiality, the docility and 
equanimity of his temper to all who appeared before him 
are amply attested." 

"His opinions are clear, concise and well written, 
but they do not indicate the elegant polish of a scholar, 
or the ripe culture of a man of letters. " Scarle referred 
to Taney's regular habits. His life was abstemious, 
except than he was an inveterate smoker. He rose early 
and attended Court at 11 o'clock. After its adjourn- 
ment, he took an hour's nap and then was wont to return 
to his labors in his library. He found "relaxation in 
the charms of domestic life and in agreeable but never 
ambitious conversation." "His friendships were firm 
and his affections strong." 

All the comments made upon Taney were not eulo- 
gistic. Horace Greeley wrote 14 that Taney " had long 
been a main bulwark of slavery. " "His natural ability, 
eminent legal attainments, purity of private character, 
fullness of years, and the long period he had officiated as 

14 2 Am. Conflict, p. 671. 



534 ROGER BROOKE TANEY 

Chief Justice caused him to be regarded by many as a 
pillar of the State, and his death, at this moment, 
seemed to mark the transition from the era of slavery 
to that of Universal Freedom. Though he held his 
office and discharged its functions to the last, it was 
notorious that he did not and (with his views) could not 
sympathize with the President in his struggle against 
red handed treason." 15 

Charles Sumner 16 never lost his dislike for Taney. 
When Lyman Trumbull on February 23, 1865, moved to 
proceed with the consideration of a House bill to provide 
a bust for Taney, Sumner objected and compared Taney 
to the ship money judges, and to Judge Jefferys. 
"Search the judicial annals and you find no perversion 
of truth more flgrant. " Sumner's objection prevailed, 
and no bust was then voted. He felt that in the "un- 
righteous judgment sustained by falsification" in the 
Dred Scott Case, "judicial baseness reached its lowest 
point." 

After the death of Sumner and of Chief Justice 
Chase, in 1874, busts of both jurists were authorized to 
be placed in the Supreme Court Room by the unani- 
mous consent of Congress and without debate. 

Though he was diligent in the practice of the law until 
he was 59 years old, Taney left a small estate. In 1871, 
an unsuccessful attempt was made to raise a fund for the 
support of his daughters. On Feb. 11, a meeting was 
held in the Supreme Court Room for this purpose, 
presided over by the Attorney General, A. T. Akerman of 
Georgia. William M. Evarts and Montgomery Blair 

15 Greeley, unjustly, added: "Originally an ultra Federalist, Slavery had 
transformed him into a practical disciple of Calhoun." A southern view of 
Taney is found in G. L. Christian's address in Proceedings of Va. Bar Associa- 
tion for 1911, p. 180. 

16 Works, IX, 270. Vide Blaine, I, Twenty Years in Congress, 137. 



ROGER BROOKE TANEY 535 

spoke in favor of the project. Matthew H. Carpenter 
referred to "the purity of Taney's character, the fru- 
gality and temperance of his life, his devotion to the 
duties of his office, from which he never cast a longing 
look upon other places or preferments, the eminence of his 
abilities, his grasp of the most complicated causes and the 
most difficult questions — all are remembered with pride." 
Young lawyers "experienced his condescension and 
courtesy, his willingness, nay eagerness, to relieve their 
embarrassments and smooth to their steps the rugged 
points of a new practice. The apparent interest with 
which his benevolent face was always turned towards a 
younger, and consequently embarrassed, advocate" was 
never forgotten. 17 

Senator George F. Edmunds, the Nestor of American 
politics and law, bore testimony that, taking Taney "all 
in all, through his long career, he displayed to our people 
a purity, a skill, an industry, that has given renown to 
our most permanent institution, that of the judiciary, 
which has taught our people reverence, for law, for 
order, a lesson, I need not say, most eminently nec- 
essary in a free country." 

Clarkson N. Potter remarked that Taney's "private 
life was a model of modesty, of kindness, of Christian 
courtesy." Mr. Justice Miller followed, with the state- 
ment that Taney was the only man he ever knew who 
showed, at a very advanced age, no imperfection in his 
mental faculties, and James A. Garfield called attention 
to the fact that, throughout all the dissent aroused in 
the North West by the Dred Scott decision, no word was 
ever uttered against Taney's personal character. 

In 1867, the General Assembly of Maryland appro- 
priated $5000 for a statue of Taney and, in 1870 

17 These proceedings were printed in pamphlet form. 



536 ROGER BROOKE TANEY 

increased this sum by an additional appropriation of 
$10,000. 18 The Commission selected the Maryland 
sculptor, William H. Rinehart, to execute the bronze 
statue and his work is quite successful. Taney is 
represented as in his old age, seated and clad in his 
robes of office. The strong features of his countenance 
are clearly delineated. The statue was placed in the 
State House Circle at Annapolis. 19 On December 10, 
1872, the statue was unveiled and, in connection with the 
ceremonies, Severn T. Wallis, Esq., delivered an oration 
in the Senate Chamber. 20 Wallis reminded his hearers 
that the pathway of a great judge "does not lead through 
the realms of fancy," and he recalled that, 

When the great citizen, whose image is beside us, walked in 
his daily walk amid our reverence, the simple beauty of his private 
life was all before us. We can recall his kindly smile, his open 
hand, his gracious, gentle speech. The elders of our generation 
will remember how his strong nature was subdued by duty and 
religion to the temperance, humility, and patience which we knew. 
All of us saw and wondered how domestic sorrow, the toils of his 
station, old age, infirmity of body, ingratitude, injustice, per- 
secution, still left his intellect unclouded, his courage unsubdued, 
his fortitude unshaken, his calm and lofty resignation and en- 
durance descending to no murmur, nor resentment 

It was a life of patriotism, of duty, and of sacrifice — a life whose 
aim and effect altogether were to be and do and bear and not to 
seem. 

18 The Commission to expend this appropriation consisted of Severn Teackle 
Wallis and George M. Gill of Baltimore City, G. Fred Maddox of St. Mary's 
County. Charles E. Trail and Hugh McAleer of Frederick County, James T. 
Earle of Queen Anne's County, and Henry Williams of Calvert County. 

19 The proposal was made that Taney's remains should be brought thither, 
but his own directions were too strong and too definite. A replica of this fine 
monument has been made and placed in Baltimore on North Washington 
Place, at the foot of the Washington Monument. 

20 Wallis's Works, I, p. 41 and ff. 



ROGER BROOKE TANEY 537 

Wallis then turned to speak of Taney's public career. 

It was the conviction of his life that the Government, under 
which we lived, was of limited powers and that its constitution 

had been framed for war, as well as for peace He 

believed that the duty of the judges was simply to maintain the 
Constitution, while it lasted, and if need be, defend it to the death. 

He had lived a life so stainless that to question his integrity 
was enough to beggar the resources of falsehood and made even 
shamelessness ashamed. He had given lustre and authority, by 
his wisdom and learning, to the judgments of the Supreme Tri- 
bunal and had presided over its deliberations with a dignity, 
impartiality, and courtesy, which elevated even the adminis- 
tration of justice. 

In the same year, 1872, Samuel Tyler, Esq., of George- 
town, D. C, published, through John Murphy and 
Company, a " Memoir" of Taney — a stout brown octavo 
of 659 pages, an invaluable source to anyone studying 
the Chief Justice's career. Tyler had long been 
Taney's friend and Taney himself had asked that Tyler 
write this book. His task was rendered the more 
difficult, because 21 the Chief Justice kept no copies of the 
letters which he wrote and, with very few exceptions, 
destroyed those which he received. Moorefield Storey, 
in reviewing the book, spoke of Taney as shown to be a 
"man of great simplicity 22 and elevation of character, 
of perfectly honest purpose, and of unyielding firmness, 
who never shrank from what he considered his duty, 
or suffered unworthy considerations to affect his judg- 
ment — a loyal, just, and upright gentleman in the best 
sense, in many respects a great man; but, though an 
able lawyer and an admirable judge, lacking the intellec- 

21 Tyler, p. X. Information from Jno. Mason Campbell, Taney's son-in- 
law. 

22 116 North American Review, January, 1873, p. 194. 



538 ROGER BROOKE TANEY 

tual breadth which is a necessary element of greatness. 
The absence of all pettiness in his nature is very strik- 
ing. " It was his misfortune, upon two "conspicuous 
occasions, to incur the bitter hate of a powerful political 
party." 

A. R. McDonough, reviewing the same book, 23 stated 
that it was Taney's misfortune "to be brought by the 
faithful discharge of his duty into opposition to the 
prevailing sentiment of his countrymen at a period of 
intense national excitement. His unpopular performance 
of a high conservative function — . . . incurred a 
tempest of aspersions, which time and reflection are 
only beginning to dispel." The clamor against his 
removal of the deposits was neither "popular nor 
generous." He deserved praise, rather than blame, for 
his share in that contest. "As a strong, calm, and pure 
man, filling blamelessly the highest station in the most 
troubled period of the national life, Taney will always 
remain one of the most venerable and interesting figures 
in the history of the country." 

Nearly ten years later, in 1881, Clarkson N. Potter 
delivered an address upon Taney before the American 
Bar Association. 24 He compared Marshall with Taney 
and found that each had been a prominent and leading 
man, before he became Chief Justice, each exercised a 
controlling influence over the Court, each was a man 
of the highest personal integrity, and each had a certain 
simplicity of manner. Potter mentioned the "plain- 

23 15 Nation, p. 300. 

24 4 Am. Bar Association Reports, p. 176. Rhodes, a scholarly historian, 
spoke of Taney as a "good student of the law," who was an "untiring worker" 
who "gained solid reputation by accurate knowledge of the law, clearness of 
thought, and absolute purity of life. His written opinions are characterized 
by vigor of style, exemplifying the hours he passed with the masters of lit- 
erature." (History, II, 249-251.) 



ROGER BROOKE TANEY 539 

ness" of Taney's life and recalled with pleasure "the 
singular gentleness and dignity with which he presided" 
on the bench and "the peculiar consideration he showed 
to young men." "He was, indeed, a man of iron will, 
of undaunted courage, of absolute purity, of respectable 
learning, of largest powers, kindest charity, and loftiest 
patriotism." 

Some years later, Nicolay and Hay's "Life of Lincoln" 
appeared and these authors summed up their opinions 
of Taney's character thus. 25 He was 

A man of amiable character, of blameless life, of great learning, 
of stainless integrity, yet such is the undiscriminating cruelty 
with which public opinion executes its decrees, that this aged and 
upright judge was borne to his grave with few expressions of 

regret Toilsome and irreproachable as his life had 

been, so far as purity of intentions were concerned, it was marked 
by one of those mistakes which are never forgiven. In a critical 
hour of history, he had made a decision, contrary to the best hopes 
and aspirations of the nation at large When he as- 
sumed public office, he became a part of the machinery of his party. 
He accepted their tenets and carried them unflinchingly to their 
logical results, so that, to a mind so upright and straightforward 
in its operations, there seemed nothing revolting in the enuncia- 
tion of the dismal and inhuman propositions of the Dred Scott 
decision. His whole life was, therefore, read in the light of that 
one act and, when he died, the nation, he had so faithfully served 
according to his lights, looked upon his death as the removal of a 
barrier to human progress. The general feeling found expression 
in the grim and profane witticism of Senator Wade, uttered some 

26 Vol. IX, 385. Alexander H. Stephens styled Taney as an "eminent 
jurist," who "was no less distinguished for his public than his private virtues. 
In all the qualities which characterize a good citizen, as well as an able states- 
man, he had no superior in the country. By his legal and judicial attainments, 
he added new lustre to that Bench to which Marshall, whom he succeeded, 
had already given so much distinction and renown." (2 Const. View of the 
War Between the States, p. 261.) 



540 ROGER BROOKE TANEY 

months before, when it seemed likely that the Chief Justice would 
survive the administration of Mr. Lincoln: "No man ever prayed 
as I did that Taney might outlive President Buchanan's term and, 
now, I am afraid I have overdone it." 26 

It is remarkable that so high a meed of praise for 
Taney was extorted from two such hostile critics as the 
writers of that work. 

A later estimate of Taney was made in 1892 by 
Francis R. Jones 27 that the Chief Justice was a "great 
technical lawyer," possessed of greater legal learning 
than Marshall. Jones thought that the Dred Scott Case 
was a blunder and that Taney's career was almost as 
pathetic as that of Oedipus. His chronic ill health and 
great physical weakness, impaired and lessened Taney's 
influence in the Court, yet Jones found that: (1) the 
Chief Justice "straightened, systematized, and settled" 
the rules of practice in the Supreme Court, "upon a 
basis from which all subsequent rules have arisen;" 
(2) he fixed the law concerning the citizenship of a cor- 
poration as that of the State creating it; (3) he pre- 
served the constitutional rights of the States in the 
Charles River case; and (4) he placed the admiralty 
jurisdiction of the Federal Government on a board basis, 
in the case of the Genesee Chief. 

After another decade, John A. Schauck, Chief Judge 
of the Supreme Court of Ohio, reviewed Taney's career. 28 
After defending Taney's political course, Schauck wrote 
that the national authority was " obviously and illogi- 

26 A 68 page pamphlet, attacking Taney as "The Unjust Judge," is said 
to have appeared in 1865. 4 Green Bag, p. 6. 

27 4 Green Bag, p. 1, with portrait. In 1895, 7 Green Bag, p. 351, an arti- 
cle appeared upon Taney by E. S. Taney, which is agreeably written, but con- 
tains nothing of importance. 

28 14 Green Bag, p. 559, December, 1902. An article upon the "Taney 
Bench" by Andrew McKinley appeared in 16 Green Bag, p. 369. 



ROGER BROOKE TANEY 541 

cally relaxed" in the decisions made under Taney. 
The former decisions were not overruled, but neither 
were they "always applied to new cases, to which they 
were logically applicable, and doctrines inconsistent 
with them were declared," without the Court being 
conscious of departure from the earlier courses. 

That Taney "was free from prejudice against what 
he believed to be legitimate federal power is shown by 
cases, in which he aided in extending it beyond the 
limits which some of his associates thought proper." 
Most of his departures from former doctrines related to 
the commercial powers, toward the limitation of which 
his early experience as counsel for the State in Brown v. 
Maryland had drawn him. 29 On the bench, he held 
his way, with marked "dignity and propriety." 

Let us hear the conclusion of the whole matter as 
it appears to this biographer. Roger Brooke Taney 
was a clear-thinking, able, high-minded, hot-tempered, 
narrow, pertinacious, brave, prejudiced man — a devout 
Christian and a faithful member of the Roman Catholic 
Church — the Church of his mother. From his father 
he inherited his high temper and his position as a 
Federalist. He remained a Federalist until his death, 
loving the Union and never advancing to the position 
of a Nationalist. He trusted his friends and was not 
one easily to forgive an adversary. Brought up in a 
community of slaveholding planters, he might emanci- 
pate his own slaves, but could not rid himself of his 
predilection toward slavery. An ardent politician in 
his early years, he was able, for the most part, to restrain 

29 Schauck praised the Merryman opinion, but maintained that the Dred 
Scott one was wrong and unnecessary, for Scott had become free by virtue 
of his residence in Illinois, unless the Missouri Court's decision should be up- 
held, and when it was upheld the Missouri Compromise question disappeared 
from the case. 



542 ROGER BROOKE TANEY 

his political feelings after he had ascended the bench, 
save in one notable instance. When he had once con- 
ceived an idea, it was very hard for him to relinquish 
it, and some of his most important public acts were 
determined by his prior relationships to men, in a way 
more complete than is usually the case. He was a keen 
and skilful advocate, never hesitating to take a case 
because there was small chance of winning it. As a 
judge, his great success lay in points of practice and in 
questions of admiralty law. He was deeply versed in 
the principles of the Common Law, without being a 
great student of history or of general jurisprudence. 
His decisions are well characterized by a judicious writer 
in Appleton's Annual Cyclopaedia for 1864 as cautious, 
sensible and sound. His constitutional decisions were 
those of a man who loved the country and its form of 
government, but who never forgot the composite and 
federal character of the United States. 30 

Forty years ago my father took his young son for a 
walk in Frederick and, stopping in front of a small 
house in the outskirts of the town, said: "There lived 
Roger B. Taney, Chief Justice of the United States, 
while he practiced law at the Frederick bar. He re- 
moved the government deposits from the United States 
Bank, which was wrong; he made the Dred Scott Deci- 
sion, in which he was wrong again; but he was a great 
judge and a good man." Two score years have passed 
and, after a careful study of the life of the jurist, I 
would not change the judgment, made when first I 
heard of Taney — he was wrong in his policy in those two 
most conspicuous experiences of his life — but he was 
a great judge and a good man. 

30 One of the first pieces of work done by me, as a graduate student in history, 
was a study of the Dred Scott Case. 



INDEX 



Ableman v. Booth, 418, 424 to 436. 

Adams, John, 31, 37. 

Adams, John Quincy, 41, 83, 84, 86, 

129,144,145,156,157,451- 
Admiralty Court, jurisdiction of, 283, 

292 to 296, 420, 423, 447, 448. 
Admiralty decisions in Circuit Court, 

472 to 487. 
Alabama, 207, 350. 
Alexander, Thomas S., 461. 
Allegany County, 57. 
Allison, Richard T., 44. 
Anderson, Roger B. T., 44. 
Anderson, Winfield Scott, 44. 
Andrew, John A., 398. 
Annapolis, 21, 22, 24, 29, 30, 32, 38, 

40, 43, 62, 84, 85, 102, 105, 107, 

139, 179, 184, 185, 186, 232, 536. 
Anne Arundel County, 52, 72, 78. 
Arkansas, 423. 
Ashley, J. M., 405. 

Bacon, Lord, 187. 

Bacon, Ezekiel, 229. 

Balch, T. W., 407. 

Baldwin, Justice Henry, 193, 207, 
284, 398. 

Baltimore, 13, 17, 22, 33, 37, 48, 50, 
71, 77, 79, 81, 82, 102, 158, 165, 
175, 1 77, 253, 265, 451, 456, 461, 
465, 522, 536; Taney returns to, 
167; federal appointments in, 238; 
in 1 86 1, 490; County, 12. 

Baltimore, schooner, 478. 

Baltimore, Bar of, 82. 

Baltimore and Ohio Railroad, 140, 
465; Maryland's subscription to, 
226. 

Banks, 33, 52, 59, 60, 182, 311; (see 
Union Bank and United States 
Bank) ; in District of Columbia, 233. 



Bank riots, 182 to 184. 

Bank of Augusta v. Earle, 207. 

Bankruptcy clause, 275. 

Barbour, Justice P. R., 193, 229, 398. 

Barnum divorce case, 88. 

Barry, William T., 103, 126. 

Battle Creek, 8. 

Beaume, Chauvette E. L., 330. 

Bennett v. Butterworth, 292. 

Benton, Thomas H., 157, 159, 160, 

167, 172, 241, 251, 252, 331, 394 to 

398,418. 
Berrien, John M., 97, 100, 101. 
Biddle, George W., 407, 448. 
Biddle, Nicholas, 107, in, 112, 120, 

258. 
Bills of credit, power of State to 

emit, 194. 
Binney, Horace, 501. 
Blaine, James G., 408, 409. 
Blair, Frank P., 103, 124, 130, 147, 

236, 242. 
Blair, Montgomery, 331, 332, 333, 

352, 534- 
Bland, Theodorick, 451. 
Blow, Taylor, 329, 330, 331, 389. 
Blucher, Marshal, 83. 
Boarman, Elizabeth, 8. 
Bonifant, Washington, 492. 
Borden, Luther M., 276. 
Boston Bar Proceedings at Taney's 

death, 320 to 324, 523. 
Booth, Sherman M., 424. 
Brawner, Catharine Maria, 65. 
Brazil, 460, 475, 482. 
Breckenridge, John C, 389, 443. 
Brent, D., 86. 
Briscoe v. Bank of Kentucky, 

i93, 195. 
British, Invasion of 1814, 10, 47. 
Brooke, Robert, 8. 



543 



544 



INDEX 



Brooke, Roger, 8. 

Brown, George, 158. 

Brown, Justice Henry B., 418. 

Brown v. Maryland, 94, 193, 268, 

270,280,437. 
Browning, Louisa, 89, 93. 
Buchanan, James, 100, 103, 211, 

338, 339, 34i to 343, 357, 374, 393, 

398, 408. 
Buchanan, John, 74. 
Buchanan, Thomas, 64, 74. 
Budd v. Brooke's Lessee, 461. 
Buenos Ayres, 469. 
Burk, Thomas, 65, 66. 
Burr, Aaron, conspiracy of, 67, 68. 
Butler, Benjamin F., 105, 124, 252. 

Cadwalader, George, 491, 492, 493. 

Calhoun, John C, 155, 265, 344, 
396, 398, 413. 

California, 314, 437, 479, 480. 

Calvert County, 7, 8, n, 12, 19, 25, 
29, 3°, 35, 37, 4i, 57, 66, 67, 515. 

Camden and Amboy R. R. v. Dela- 
ware and Raritan Canal Company, 
141. 

Campbell, Alice Taney, 44. 

Campbell, Amy Mainwaring, 44. 

Campbell, Anne Taney, 44. 

Campbell, Elizabeth Maynadier, 44. 

Campbell, Justice James A., 284, 328, 

33 2 , 337, 34o, 357, 372, 389, 404, 

413,446,448,489. 
Campbell, James Mason, 44, 452, 495. 
Campbell, Mary Monica, 44. 
Campbell, Phebe Key, 44. 
Campbell, Roger B. T., 44, 494. 
Canada, 212; slaves escape to, 290. 
Carlisle, Pennsylvania, 13, 14, 17, 18. 
Carmichael, William, 24. 
Caroline County, 79. 
Carpenter, Matthew H., 535. 
Carroll, Charles, of Carrollton, 34, 57, 

84, 88, 89, 93, 96. 
Carroll, Thomas William, 179, 257. 



Carson, Hampton L., 406. 
Cass, Lewis, 103, 130, 160, 335. 
Catoctin Mountain, 44, 48, 63. 
Catron, Justice John, 229, 284, 327, 

332, 333, 337 to 340, 342, 357, 372, 

413,446,448,489,507. 
Cecil County, 91. 
Chaffee, Calvin C, 330. 
Charitable bequests, 313, 470; uses, 

statute of, 78. 
Charles River Bridge Company v. 

Warren Bridge Company, 141, 

194 to 203. 
Charless, Joseph, 330. 
Charter grant to be narrowly con- 
strued, 137, 141 to 143, 194 to 203, 

285. 
Chase, Salmon P., 52, 509, 534. 
Chase, Jeremiah Townley, 21, 24, 25, 

65, 77- 
Chesapeake Bay trade, 476, 477, 483, 

485, 486. 

Chesapeake and Delaware Canal, 
33< 285. 

Chesapeake and Ohio Canal Company 
v. Baltimore and Ohio Rail Road 
Company, 140, 141. 

Chihuahua, 298, 299. 

Chile, trade with, 466. 

Choate, Rufus, 267. 

Cigars, gift of, 172. 

Cincinnati, 181, 308, 326. 

Circuit Court, payment of jurymen 
and witnesses in, 248, 250; Taney's 
decisions in, 451 to 487, 512 to 514; 
relation to Supreme Court, 454. 

Citizens, who are, 345, 400, 403, 417; 
of United States, 362, 363, 400, 
404; of State, 34s, 346, 347, 400; 
negroes, 345 to 352, 358, 362, ^3, 
372, 381, 399, 403, 404, 405, 410, 
412; discharging federal duty, 357, 
364; duty to neutral nations, 307; 
right of transit through country, 
282,357. 



INDEX 



545 



Clay, Henry, 61, 107, 153, 154, 159, 
182, 187, 218, 243, 254, 256, 262, 
265,398. 

Clover, Rev. Lewis Peter, D.D., 
48, 528. 

Coale, James M., 521. 

Coke, Lord, 421. 

Cole, John, 468. 

Collisions on the water, 293, 423, 484, 
485, 486. 

Commerce, congressional power over, 
94, 192, 218, 224, 225, 267 to 273, 
279 to 282, 305, 306, 419, 423, 437; 
in war time, 214, 469, 478, 512 
to 515. 

Congressional power to charter bank, 
108 to 112, 129. 

Connecticut, negroes in, 349. 

Conquest of territory, 288, 289. 

Conscription law, 510, 511. 

Constitution of U. S. over states, 435, 
440; proper method of exposition, 
213,449. 

Constitutionality of statutes, 454. 

Consul, jurisdiction over, 454. 

Contempt of court, 472. 

Contract, impairment of obligation 
of, 223, 309, 311, 365; maritime, 
476, 477, 479; validity of, 274, 463 
to 466. 

Converse v. Greeley, 423. 

Cook v. Curtis, 273. 

Copyright, 468. 

Corporations, powers of, 285, 309; 
rights outside of state where in- 
corporated, 207 to 210. 

Corwin, Edward S., 410. 

Crawford, William, 158, 159. 

Cumberland Road, 224, 225. 

Curtis, Justice B. R., 284, 320 to 
322, 324, 327, 332, 340, 341, 342, 
347, 361 to 372, 382, 388, 389, 398, 
404, 407, 408, 416, 420, 448, 501, 
527,528. 

Curtis, B. R., Jr., 371. 



Curtis, George Ticknor, 333, 335, 

387, 389- 
Cushing, Caleb, 342, 527. 
Cushing v. Ship, John Frazer, 423. 

Daniel, Justice Peter V., 46, 229, 284, 
327, 332, 340, 357, 372, 383, 400, 
413, 437, 448, 489. 

Davidson, Rev. Robert, D.D., 14, 15. 

Dartmouth College Case, 194. 

Davis, Henry Winter, 470. 

Davis, John, 267. 

Debt, national, 175. 

Debtors insolvent, imprisonment 
of, 61. 

Delaware, 234, 250, 261, 451. 

Denison, William, 438. 

Deposits, removal of, 118 to 121, 
123 to 130, 132, 144, 146, 150, 151, 
153 to 158, 171, 181, 248, 262, 378. 

Dickinson College, 13, 14, 15, 104. 

Dinsman v. Wilkes, 296. 

District of Columbia, laws in, 211; 
negroes in, 352. 

Divorce, 88, 424. 

Donelson, Andrew J., 233. 

Doniphan, Col. Alexander W., 299. 

Dorr Rebellion, 276. 

Dorsey, W., 63. 

Double Pipe Creek, 43, 44. 

Douglas, Stephen A., 342, 374, 391, 

443- 
Dred Scott Case, 326 to 418, 443, 
445; Taney's opinion, 343 to 355, 
372, 378, 379, 383 to 387, 404, 
414 to 418; Wayne's opinion, 355, 
356, 372, 404; Nelson's opinion, 
336, 337, 356, 357, 372; Grier's 
opinion, 357, 372, 404; Daniel's 
opinion, 357, 372, 400, 413; Camp- 
bell's opinion, 357, 372, 404, 413; 
Catron's opinion, 357, 372, 413; 
McLean's opinion, 358 to 361, 
372, 414, 416; Curtis' opinion, 
361 to 371, 372, 404, 407, 408, 



546 



INDEX 



416, 417; attacked, 372, 373, 39° 
to 418, 534, 535, 54i; defended, 
374 to 382, 389; friction between 
Taney and Curtis, 383 to 388. 

Duane, William J., 124, 125, 128, 
129,132,150,155,254,255. 

Duvall, Gabriel, 26, 179. 

Edmunds, George F., 535. 

Election in 1799, 30, 31; in 1800, 36, 

37; in 1803, 56, 57; in 1808, 57; in 

1814, 58; in 1824, 83; in 1828, 84; 

in 1829, 85; in 1832, 107, 118, 122; 

in 1834, 174, 176, 253; in 1835, 177; 

in 1836, 236; in 1837, 247, 248, 250; 

in 1839, 253, 255; in 1841, 260; in 

1842, 261; in 1843, 263, 264. 
Elkton, 171, 175, 176. 
Ellicott, Thomas, 83, 98, 106, 115, 

147, 148, 184. 
Emancipation, Taney's opinion as 

to, 376, 378. 
Emerson, John, 328, 357, 364. 
Emerson, Mrs. John (Irene), 329, 330. 
English, David, 13. 
English Law, Taney's opinion of, 422. 
Equity, 292, 314, 469 to 472. 
Etting, Frank M., 44. 
Etting, Solomon, 83, 92, 93, 105. 
Evidence, rules of, 298; of negroes, 

455, 486. 
Evitt, Woodward, 56. 

Ewing,E.W.R.,375- 
Ewing, Thomas, 529, 531. 
Executor's bond, 467. 
Expunging resolutions, 157. 
Extradition, 212, 307, 439 to 442. 

False imprisonment, 463. 

Farrar, Thomas, 404. 

Fauquier White Sulphur Springs, 375. 

Federal courts, supremacy of, 428 to 

436. 
Federalist party, 30, 36, 56, 57, 58, 

83, 84, 85, 103, 104, 154, 170, 190. 
Fessenden, William P., 408. 



Field, Roswell, 330, 331. 

Florida, boundary, 313; claims arising 

from war in, 302; Spanish land 

grants in, 204, 312. 
Fontain v. Ravenel, 313. 
Foreign nations, intercourse with, 

307, 308. 
Forsyth, John, 232. 
Fort McHenry, 491, 492, 493. 
Fort Snelling, Minnesota, 328, 338, 

364- 
Fox hunting, 19, 20. 
France, Danger of war with, 160, 161, 

162, 184. 
Fraudulent sale, 462. 
Frederick City, 10, 38 to 79, 85, 169, 

170, 521. County, 452. 
Frederick County Bank, 52. 
Frederick Academy, 52, 178. 
Fremont, Gen. John C, 314, 409. 
French protested note, 151, 152, 176, 

274. 
French treaty claims, 214. 
Frick, William, 238. 
Fugitive slave, law, 219, 425, 426. 

Gaither, George R., 158, 159. 

Gambling, 470, 471. 

Garfield, James A., 535. 

Genesee Chief v. Fitzhugh, 292 to 296. 

Georgia, 207, 313, 397- 

Georgetown, D. C, 13, 40, 101. 

Geyer, Henry S., 42, 331. 

Giles, William B., 523. 

Gilpin, Henry D., 168. 

Glenn, Elias, 184, 186. 

Glenn, John, 141, 184. 

Goodwin, Lyde, 240. 

Grand Jury, charge to, 452. 

Greeley, Horace, 405, 533. 

Grier, Justice Robert G., 284, 311, 

3 2 7, 332, 337 to 340, 342, 357, 360, 

372,404,413,448,507- 
Gruber, Jacob, 72 to 76. 
Grundy, Felix, 252. 



INDEX 



547 



Habeas Corpus, 212, 426, 427, 434, 

490 to 504. 
Hager, Jonathan, 68. 
Hagerstown, 58, 63, 65, 68, 69. 
Hale, John P., 267, 394. 
Hale, Nathan, 399. 
Hancock, Maryland, 50. 
Harford County, 78. 
Harker, Samuel, 240. 
Harper, Robert Goodloe, 63, 71, 77, 

78, 81, 83, 84, 87, 397- 
Harper's Ferry, 140, 169. 
Harvard College, 198, 200. 
Heath, Upton S., 184. 
Henry, Joseph, 310. 
Hobbs v. Fogg, 381. 
Holmes v. Jennison, 211. 
House of Delegates, 29, 56. 
Hughes, George W., 444. 
Hughes, Samuel, 62. 
Howard, McHenry, 494, 503. 
Howard, John Eager, 34, 52, 503. 
Huston, Charles, 16. 

Illinois, 328, 331, 354, 356, 360, 374, 

397, 399- 
Immigrants, 484. 
Income tax on federal judges' salary, 

508. 
Indians, 137, 138, 222, 227, 345, 363. 
Ingersoll, Charles J., 107. 
Insolvent laws of States, 273, 274. 
Insurance, marine, 95, 463, 464. 

Jackson, Andrew, 83, 84, 100 to 103, 
105 to 107, 109, 114, 116 to 132, 

138, 145, 146, 149, 155. iS7, 160, 
162, 165 to 168, 171 to 177, 179, 
185, 187, 233 to 266, 498; farewell 
address, 236, 240, 241; bust of, 251. 

Jesuits, 8, 10, 85. 

Johnson, John, 64. 

Johnson, Reverdy, 77, 78, 80, 81, 82, 
93, 140, 141, 145, 182 to 185, 331, 
337, 348, 374, 393, 398, 446, 525, 
526,530- 



Johnson, Thomas, 41. 

Jones, Francis R., 540. 

Jones, Walter, 68, 97, 140. 

Jones, William, 100. 

Jordan's Springs, 265. 

Jurisdiction of courts, 204, 215, 313, 
334, 344, 354, 355, 357, 361, 363, 
374, 391, 395, 4°4- 4", 421, 454- 

Kansas, 392, 400. 

Kansas Nebraska Bill, 326, 331, 341. 

Kearney, Gen. Phil., 299. 

Keim, William H., 490, 492. 

Kendall, Amos, 103, 145, 148, 177. 

206, 226, 230, 249, 256, 263. 
Kendall v. Stokes, 205 to 207, 225. 
Kennedy, John P., 178. 
Kennett v. Chambers, 306. 
Kent, Gov. Joseph, 86. 
Kent, Chancellor James, 195. 
Kentucky, 389; v. Denison, 437 to 

442; minstrels, 289, 290, 354; 

negroes in, 349, 396. 
Key, Francis Scott, 40, 43, 47, 51, 55, 

62, 64, 69, 70, 90, 95, 100, 101, 102, 

149, 184, 185, 230, 263. 
Key, John Ross, 40, 43, 47. 
Key, Philip Barton, 63, 64, 66. 

Lago, Willis, 438, 441. 

Lake Ontario, 293. 

Lambert v. Ghiselin, 287. 

Lamon, Ward, 515. 

Lamed, William A., 400. 

Latrobe, John H. B., 81, 83, 85, 87, 88, 

99, 106, 140. 
Laura, barque, 419. 
Law, John K., 239, 240. 
Law reform, 318, 319. 
Lee, Robert E., 529. 
LeGrand v. Darnall, 96, 350. 
Lewis, William B., 124, 130. 
License cases, 267 to 273, 412. 
Limitations, statute of, 467. 
Lincoln, Abraham, 342, 391, 438, 443, 

445, 490, 500, 501; Taney refuses 



548 



INDEX 



to call on, 507; Life by Nicolay and 

Hay, 539. 
Lingan, General James, 55. 
Livingston, Edward, ior, 102, 103, 

124, 256. 
Loudon County, Virginia, 51. 
Louisiana, 283, 481. 
Louisiana Purchase, 328, 337, 354, 

357, 359, 368, 370, 371, 397, 413. 
Lumber, Rafts of, 486. 
Luther v Borden, 276 to 279. 
Lynn, David, 57. 
Lyon, John 16, 17. 

McCormick, James, 15. 
McCulloh v. Maryland, 108, in. 
McCullough, James W., 92, 93. 
McDonough, A. R., 538. 
McElroy, Rev. John, 46, 50. 
McKim, Isaac, 158, 159. 
McKinley, Justice John, 229, 284. 
McLane, Louis, 124, 125, 130, 131, 

160, 161, 170, 177, 239. 
McLean, Justice John, 196, 211, 218, 

284, 332, 337, 339, 34i, 358, 359, 
360, 372, 414, 419, 448, 505. 

McMahon, J. V. L., 185, 461, 462. 

Madison, President James, 68, 85. 

Magoffin, Beriah, 438. 

Magruder, A. C, 140. 

Magruder, John, 51. 

Magruder, R. B., 141. 

Mail, 224. 

Mail coaches, 225. 

Maine, 392; negroes in, 350. 

Malays, 455. 

Mandamus, 205, 225, 419, 439. 

Marechal, Abp. Ambrose, 85, 86. 

Mariners' wages, 98, 420, 477, 478. 

Maritime contract, 466. 

Marriage of negroes, 365, 381. 

Marshall, John, 179, 181, 187, 191, 
193, 263. 

Marshall, Richard H., 521. 

Martin v. Waddell, 222. 



Martin, Judge Robert N., 527. 

Martin, Luther, 25, 63 to 66, 68 to 72. 

Martineau, Miss Harriet, 189. 

Maryland described, 286; general 
court, 21, 24, 25; negroes in, 348, 
349, 362, 455; does not secede, 446, 
488; court of appeals judges greet 
Taney, 514; appropriates for 
Taney's statue, 535, 536. 

Mason, John Thompson, 62, 64, 69. 

Mason, John Y., 265. 

Massachusetts, 382, 389; boundary, 
204, 216, 217, 228; liquor laws, 
268; negroes in, 348, 362; passen- 
gers laws, 280. 

Mayor of New York v. Miln, 192. 

Maxey, Virgil, 52. 

Menard v. Aspasia, 360. 

Meredith, Jonathan, 88, 94, 95, 98, 
141,178,529. 

Merrick, Judge, 526. 

Merryman, John, 490, 491. 

Metallic currency, 156, 159, 163, 164, 
172, 245, 256. 

Methodist Church, 75. 

Mexico, 291, 314, 363; war with, 287 
to 289, 298 to 302. 

Michigan, 168, 364. 

Middletown, Frederick County, 57, 74. 

Military officer, domicile of, 357, 364, 

399- 

Militia, 350, 351. 

Miller, Justice Samuel F., 535. 

Minnesota, 328, 373, 398, 399, 419. 

Mississippi River, 296. 

Mississippi Territory, 397. 

Missouri, 328 to 331, 338, 346, 350, 
352, 356, 360, 363, 364, 365, 373- 

Missouri compromise, 61, 154, 196, 
326, 328, 334, 335, 337, 338, 339, 
34i, 354, 355, 357, 363, 366, 367, 
37i, 372, 395, 398, 399, 404, 405, 
410,412,413, 414,416. 

Mitchell v. Harmony, 298 to 301. 

Monocacy River, 48, 67. 



INDEX 



549 



Monterey, California, 302. 
Montgomery County, 55, 66, 67, 

71, 78,100, 236. 
Morse, S. F. B., 309 to 311. 
Morsell, James S., 515. 
Murder, 455,456. 

Naturalization, 346, 350, 351, 362, 

401. 
Naval officer, salary of, 468. 
Navigable streams, 292, 304. 
Navy Department, 137. 
Negligence, 460, 461, 471, 480, 506. 
Negotiable instruments, 287, 423. 
Negroes, 46, 55, 56, 60, 72, n8, 334, 

339, 345 to 352, 376, 377, 379, 381, 

399,400,403,455,511- 
Nelson, Roger, 62. 
Nelson, Justice Samuel, 284, 327, 332, 

336,337,339,356,357,372. 
Neutral in enemy country, rights 

of, 291. 
Neutrality laws, 214, 306. 
New Hampshire, liquor laws of, 270, 

273; negroes in, 350, 362. 
New Jersey, rights to land in, 222. 
New Jersey Legislature, power of, 142; 

endorses Taney, 154. 
New York City, 265. 
New York State, 392; passenger laws, 

280, negroes in, 362. 
New York Tribune, 335, 34i, 343, 

372,373. 
Nisbet, Rev. Charles, D.D., 14, 15, 

17, 18. 
Norfolk Drawbridge Company, 137. 
North Carolina, 362, 381, 397. 
North West Ordinance interpreted, 

290,360,366,367,397,416. 
Nott, Eliphalet, 375, 376. 
Nullification, 105. 

O'Conor, Charles, 531. 
Officer, compensation for extra ser- 
vices, 424, 457. 



Ohio, 290, 306, 312, 392, 438. 
Old Point Comfort, 50, 126, 319. 
Oliver, Robert, 82, 314. 
Oliver v. Gray, 95. 
Opinions, construction of, 273. 
O'Reilly v. Morse, 309. 
Owings Mills, 17, 3 2. 

Palmer, Joseph M., 34. 

Paper currency not legal tender, 

163, 509- 
Paper money, 60, 237, 238, 243, 244, 

246, 248 to 250, 257, 262 to 264. 
Passenger cases, 193, 279 to 283. 
Patapsco River, 140, 513. 
Patent law, 221, 222, 291, 309, 419, 

469. 
Patent office, 135. 
Patterson, James W., 158. 
Patuxent River, 7, 8, 10, 13. 
Pease v. Peck, 360, 366. 
Pendleton, Alice Key, 519, 520. 
Pennsylvania, 304, 313, 382, 421, 470. 
Perine, David M., 504, 505, 517, 5*9' 
Perine, E. Glenn., 519. 
Perrine v. Chesapeake and Delaware 

Canal Company, 285. 
Personal liberty laws, 425. 
Peters, Richard, 206, 207, 211, 212, 

230, 316. 
Pierce, Franklin, 378, 503. 
Pigman, Beene S., 74. 
Pike, James, 335, 343. 372, 373. 
Pilotage laws, 271. 
Pinkney, William, 25, 53, 68, 71, 72, 

77, 87, 523- 
Point of Rocks, 67. 
Police power, 192, 272. 
Political questions, 279, 303, 368, 387, 

39i,395,398,405,407,4i8. 
Polk, James K., 155, 163, 228, 264. 
Potomac River, 140. 
Potter, Clarkson N. , 448, 535, 538. 
Potts, Richard, 41. 
Practice, opinions on, written by 

Taney, 323. 



550 



INDEX 



Practice and procedure of the United 
States Courts, 205, 446. 

President, power to recognize State 
Government, 278. 

Presidential Elector, 57. 

Price, William, 54, 522. 

Prigg, v. Pennsylvania, 219, 359, 406. 

Prince Fredericktown, 30. 

Prince George's County, 72. 

Princess of Orange's jewels, 134. 

Princeton College, 13. 

Prize cases, 507. 

Prize court, 301, 302. 

Property rights under Fifth Amend- 
ment, 354, 368, 369, 396, 413 to 415, 
418. 

Protestant Episcopal Church, 44, 470. 

Public lands to be paid for in specie, 
237, 241. 

Quarantine regulations, 272. 

Randolph, John, of Roanoke, 397. 
Rape, 6s, 66. 
Raymond, Daniel, 78. 
Republican form of Government of 

State, 277 to 279. 
Rhode Island, liquor laws of, 269; 

negroes in, 350; rebellion in, of 1842, 

276 to 279; v. Massachusetts, 204, 

216, 217, 228. 
Richmond, Virginia, 263, 384, 502, 

SOS- 
Ridgely, Andrew Sterrett, 526. 
Rinehart, William H., 536. 
Ringgold v. Ringgold, 91. 
Ringgold, Samuel, 66. 
Riot, 456. 

Ripraps, 126, 128 to 130. 
Rochester, Nathaniel, 58. 
Rock Island, 328. 
Rockville. 66. 
Roman Catholics, 7, 44 to 47, 60, 82, 

443,444- 
Ross, William, 54. 
Rotation in office, Taney's view, 379. 



Sailor, discharge of, 297, 298. 

Sale, contract of, 465. 

Sanford, or Sandford, John F., 330. 

Santa Fe, 298. 

Saxe Weimar, Duke of, 82. 

Schley, Frederick A., 56. 

Schley, William, 49, 53, 77, 82, 524. 

Schauck, John A., 540. 

Schools in Calvert County, n, 12, 13. 

Schouler, James, 522. 

Scott, Dred, 328, 365, 389. 

Scott, Eliza, 328. 

Scott, Harriet, 328, 365, 388. 

Scott, Lizzie, 329. 

Scott v. Sanford, 326 to 418. 

Seaman's wages, see Mariners' wages. 

Searle, G. W., 532. 

Senate of Maryland, 59 to 62. 

Seward, William H., 317, 392, 393. 

Shaaff, Arthur, 38, 48, 55, 62 to 66, 
69 to 71. 

Shriver, Abraham, 74. 

Slander, 65, 79. 

Slave trade, African, 94, 214, 282, 
349, 370, 397, 416, 460, 483; inter- 
state, 218. 

Slavery, 324, 325, 336, 340, 352, 357 
to 359, 379. 380, 390, 396; in 
territories, 326, 328, 329, 331, 
333 to 33s, 341, 343, 367 to 369, 
37i, 39i, 393, 394, 39°, 397, 402, 
405, 408, 443; only by municipal 
law, 363, 364, 369, 370, 400, 406, 
414. 

Slaves, 55, 56, 61, 72, 78, 79, 136, 138, 
191. 274, 281, 292, 319, 348; free- 
dom of, 223, 290, 382; Taney's view 
of duty of master, 377. 

Smith, Samuel, 107, 112,125, 2 39>398. 

Smith, T. C, 417, 447. 

South Carolina, 313. 

Sovereignty, 2S9, 312, 353. 

Spirits, importation of, 267 to 273. 

Springfield Republican, 390. 

Squatter Sovereignty, 326, S33, 335, 
341,374,443- 



INDEX 



551 



Stagecoach, 460. 

Stare Decisis Rule, 295, 356, 359, 360. 
Stansbery, Henry, 530. 
State v. Manuel, 362, 381, 399. 
State bonds, 423. 

State court's decision, 312, 354, 356, 
360 361, 365; not upheld, 274; as 
to State Constitution, 506. 
State laws, constitutionality of, 215. 
States of Union, relations to each 
other, 209; relations to foreign 
countries, 212, relation to nation, 
274. 
State or pet banks for government 
funds, 119, 122, 123, 127 to 129, 
139, 146, 149, 152, 156, iS7, 163 
164, 174, 179 to 181, 245. 
Steiner, Col. Stephen, 42. 
Steamboat inspections, 483. 
Stephens, Alexander H., 334, 335, 

373, 374, 502, 539. 
Stephens, Linton, 334, 335, 502. 
Stevenson, William, 44. 
Storey, Moorfield, 537. 
Story, Justice Joseph, 92, 133, 153, 
181, 189, 193, 195, 196, 210 to 212, 
220, 223, 224, 229 to 231, 237, 284. 
Strader v. Graham, 289, 290, 354. 
Stryker, Augustus P . 44 
Stryker, Heber Halsey, 44. 
Stryker, Mason Campbell, 44. 
Sub Treasury, 243. 
Suffrage and citizenship, 373, 382. 
Sumner, Charles, 189, 393, 394, 534. 
Supreme Court, power of, to interpret 
Constitution, 279, 368, 431, 432 to 
434; high regard for, 342; officers of, 
relation to Taney, 515, 516; jus- 
tices of, relation to Taney, 516, 
519; position of, 518. 
Surplus revenue deposited with 

States, 234 to 237, 241, 245, 252. 
Susquehanna River, 286, 486. 

Tampico, occupation of, 287 to 289. 
Taney, Alice Carroll, 44, 50, 252, 319. 



Taney, Ann P. C. Key (Mrs. Roger 
B.), 43 to 45, 47 to 52, 230, 255, 
263, 319, 527. 

Taney, Anne Arnold Key, 44. 

Taney, Augusus Brooke, 44. 

Taney, Ellen Mary, 44, 437. 

Taney, Elizabeth Maynadier, 44. 

Taney, Ethelbert, 45, 50. 

Taney, Maria Key, 44, 85. 

Taney, Michael, 7 to 10, 12, 13, 15, 
20, 27,37,38, 51, 52, 56, 249. 

Taney, Michael's children, n. 

Taney, Monica, 8 to 10, 45, 51. 

Taney, Octavius, 11, 12, 56. 

Taney, Raphael, 8. 

Taney, Roger B., born, 8; early 
education, n, 12, 13, 515; college 
education, 13 to 19; fox hunting, 
19, 20; law student, 21 to 25; lawyer 
at Annapolis, 25 to 28, 38; lawyer 
in Calvert County, 29, 35; member 
of House of Delegates, 30 to 36; 
timidity, 19, 25 to 28; in social life, 
22, 34, 48, 89; love of country, 35, 
48; lawyer in Frederick, 39 to 80; 
marriage, 43; love of wife, 48 to 
51; children, 44; executor of 
father's estate, 9 ; home in Frederick, 
55, 80; frees slaves, 55, 56, 376; 
candidate for House of Delegates 
1803, 56; candidate for Presi- 
dential Elector 1808, 57; candi- 
date for Congress 18 14, 58; Elec- 
tor for Senate of Maryland, 59; 
State Senate, 59; lawyer in Balti- 
more, 81; residence in Baltimore, 
81; 165; becomes Jacksonian, 83 
to 85; recommends to office, 84; 
first appears in Court of Appeals, 
63; first appears in United States 
Supreme Court, 91; attorney gen- 
eral of Maryland, 86, 93; attorney 
general of United States, 98, 132 
to 139, 165, 171; acting Secretary 
of War, 103; receives LL.D. from 
Dickinson, 104; Secretary of Treas- 



/ 



552 



INDEX 



ury, 128, 144 to 165, 170, 318; 
controversy with United States 
Bank, 104 to 165; resumes law 
practice, 166; on United States 
Supreme Bench, 145, 179; Chief 
Justice, 181, 232, 237; principles 
of deciding cases, 190, 192; spends 
summer in country, 243, 246; differs 
from other Justices, 315; ap- 
pearance in Court, 315; harmonizes 
difference between reporter and 
clerk, 316; administers oath of 
office to President, 316, 490; 
declines dedication of political 
speech, 317; rule as to refraining 
from politics on bench, 444; 
characteristics as judge, 320 to 324, 
332; legal ability, 322; his great 
decisions, 447; opinions rendered 
by, 448; demeanor in Circuit 
Court, 451, 462; circuit court deci- 
sions, 452; position in 1861, 446, 
489 to 503; loses property, 504; 
death, 520; burial, 10, 521; health, 
20, 52, 173, 175, 176, 253, 260, 261, 
263, 320 to 322, 333, 375, 384, S05, 
506, 518, 527; defective vision, 34, 
35; character, 42, 43, 53, 80, 104, 
190, 343, 409; reading, 43, 520, 522, 
523; religion of, 44 to 47, 5°, 316, 
517; love of flowers, 48; friendship 
for young lawyers, 54, 87, 535; 
appearance, 87, 98, 188; relations 
with children, 317; birthday gift, 
317; literary style, 320, 324; esti- 
mates of, 442, 446, 448 to 450, 
489, 537 to 542; eulogies on, 521 
to 533; family of, left in need, 534; 
bust of, 534; statue of, 535, 536; 
Life by Samuel Tyler, 537. 

Taney, Sophia Brooke, 44, 85. 

Taney family, 175, 177, 520. 

Taney v. Kemp, 71. 

Taneytown, Maryland, 8, 373. 

Taneyville, Missouri, 373. 



Tariff laws interpreted, 457, 458. 
Taxation, exemption from, claim 291; 

power of Congress, 282, 311. 
Taylor, Francis, 44. 
Taylor, Roger Taney, 44. 
Taylor, Zachary, 316. 
Teesdale, John, 326. 
Telegraph, magnetic, 309, 310. 
Territories, power of Congress over, 

353. 354, 358, 364 to 366, 368, 370, 

39610398,423,414,416. 
Territorial Courts, 274. 
Texas, 292, 306, 308. 
The Thomas Jefferson, 295. 
Thomas, Francis, 169, 170. 
Thomas, John Hanson, 41, 56, 58, 67. 
Thomas, Samuel, 172, 173. 
Thompson, Justice Smith, 193, 230, 

284. 
Tidewater, 292 to 295. 
Tiernan v. Jackson, 98. 
Tolls, 285, 286, 437- 
Tome, Jacob, 486. 
Treasury Department, 136. 
Treaties, 135. 
Treaty making power, 288, 312, 313, 

419. 
Trumbull, Lyman, 534. 
Tyler, Grafton, 511, 520. 
Tyler, John, 58, 229, 257 to 262, 265, 

318. 
Tyler, Samuel, 46, 49, 318, 520, 537. 

Union Bank of Maryland, 83, 89, 91, 
94, 96, 98, 105, 106, 147, 149, 153, 
154, 156, 159, 184, 243. 

Union sentiments of Taney, 378, 428 
to 436, 448, 449, 517, 532. 

United States v. Booth, 315. 

United States v. Gooding, 95. 

United States v. Morris, 214. 

United States v. Reid, 298. 

United States Bank, 98, 104 to 132, 
142, 144 to 156, 163, 168, 170 to 
172, 174 to 177, 180, 181, 236, 237, 



INDEX 



553 



241, 243, 247, 248, 255, 260, 
261, 263. 

Usury, 464, 470. 

Vacancies, President's power to fill, 

139. 
Van Buren, Martin, 104, 105, 116, 

124, 129, 132, 150, 162, 167 to 169, 

171, 176, 177, 184, 185, 233, 239,242, 

243, 246, 436, 437. 
Vermont, 212, 392. 
Vessel, bonds, 459; lien on, 419, 420, 

475 ; repairs, 475 to 477; suits 

from building, 472 to 474. 
Veto power of President, 109 to 117 
Vincennes University v. Indiana, 309. 
Virginia, 304, 382, 396, 451, 465. 

S04, 513- 

Wade, Benjamin F., 539. 

Wallis, Severn Teackle, 81, 516, 517, 

S24, 536. 
War Department, 103, 136. 
War power of President, 288, 301, 

490 to 502, 511, 512, 518, 537. 
War, seizure of private property 

in, 300, 513. 
Warfield, Henry Ridgely, 84. 
Washington City, 48, 85, 96, 100, 103, 

165,491,521. 
Washington County, 62, 63, 66, 68, 

70, 73, 78, 226. 
Washington, George, death of, ss> 34- 
Wayne, James M., Justice, 42, 55, 

165, 193, 211, 284, 327, 332, 336, 

337,339,355,372,383,406,419,446, 

448, 489, 507, 516, 531. 



Webster, Daniel, 92, 97, 140, 154, 171, 

172, 182, 194, 195, 218, 257, 267, 

316. 
West Indies, trade with, 458, 459, 

475, 48o, 483. 
West River, Anne Arundel County, 

287. 
Wheeling Bridge Case, 304 to 306, 

3i5- 
White, John, 238. 
Whitney, Reuben M., 126. 
Wickliffe, Charles A., 265. 
Wilkens, William, 265. 
Wilkes, Commodore Charles 297,298. 
Wilkinson, Gen. James, court martial 

of, 67. 
Williams, George Hawkins, 491. 
Williams, Nathaniel, 186. 
Williams v. Ash, 382, 399. 
Wilmer, L. A., 240. 
Wilson, Henry, 405. 
Winchester, Virginia, 263. 
Winder, William H., 71, 72, 77, 78, 81. 
Wines, importation of, 267 to 273. 
Wirt, William, 79, 81, 82, 87, 92 to 95, 

97,98,141,523. 
Wisconsin, 364, 365, 424, 425 to 436. 
Woodbury, Levi, 126, 175, 177, 179, 

246, 248, 250, 284. 
Woolsey, Theodore D., 400. 
Writ of error, 284, 315, 353, 361, 426, 

434- 
Wyatt, J. B. Noel, 317. 

Yohe, Samuel, 492. 



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006 022 593 A 



